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'A 


A  TREATISE 


ON  THE 


LAW  OF  PARTITION 


OF 


REAL  AND  PERSONAL  PROPERTY. 


BY 

CLARK  D.  KNAPP, 

Counselor  at  Law,  and  Author  of  "Knapp's  Poor  Laws. 


LEX   EST   DICTAME.M    RATIONIS. 


NEW  YORK! 

S.  S.   PELOUBET, 

LAW   PUBLISHER   AND    BOOKSELLEEl, 
80    NASSAU    STREET. 

1887. 


Ip1(  ? 


COPYRIGHT, 

BY   CLARK   D.    KNAPP. 

1887. 


S  O  O  U  Vr 


PREFACE. 


It  Is  difficult  for  the  lawyer  in  active  prac- 
tice to  write  a  treatise  upon  any  topic.  And  yet 
it  seems  to  me  that  a  law-book  would  be  almost 
worthless  if  written  by  one  having  an  order 
of  the  Supreme  Court  at  general  term,  say- 
ing that  he  is  an  attorney  and  counselor  at 
law,  but  having  no  practice.  Almost  every 
day  the  practitioner  wonders  why  courts  can- 
not and  do  not  agree  with  each  other^  and  he 
congratulates  himself  whenever  he  finds  that 
some  certain  court  has  been  consistent  with 
itself.  As  a  usual  thing  a  court  of  last  resort 
is  consistent  with  itself  and  with  common 
sense  and  good  law.  If  a  court  of  last  resort 
becomes  inconsistent  in  its  rulings,  one  will 
generally  find  that  it  has  undertaken  to  dis- 
tinguish one  case  from  another;  and  in  this 
distingttishing,  as  it  is  termed,  the  best  court 
in  the  world  will  overrule  itself,  and  then  the 
practitioner     and     the     author     find     the    law    in 

doubt.       The    practitioner    guesses    at    tlie    law, 

[iiij 


IV  PREFACE. 

citing  the  case  in  his  favor,  hoping  that'  his 
opponent  will  not  find  that  the  court  has  seen 
fit  to  overrule  itself  by  getting  behind  that 
peculiar  legal  convenience,  to  wit  :  the  word 
"distinguished."  This  Avill  explain  why  the 
law  writer  will  sometimes  place  before  his 
reader  contradictory  law.  I  will  admit  that,  in 
a  few  instances,  such  will  appear  to  be  the 
case  in  this  work.  But  I  believe  that  this  is 
as  free  from  contradictions  as  any  text-book. 
This  work  is  a  careful  collection  of  the  law, 
as  it  has  been  settled,  from  time  to  time,  by 
the  courts  upon  that  important  question,  Par- 
tition. Now  and  then  different  rules  have 
been  laid  down ;  but,  in  each  case,  I  have  at- 
tempted to  give  the  reasoning  of  the  court  or 
courts  laying  down  the  rules ;  and  thus  the 
student  and  practitioner  is  informed  of  the 
course  of  reasoning  of  the  courts,  and  can 
follow  the  precedents,  until  one  or  the  other 
shall  be  settled  as  the  law,  for  certainly  one 
rule  or  the  other  will  be  established  and  wnll 
govern.  The  law  pertaining  to  Partition,  with 
but  few  exceptions,  is  well  settled — there 
being  now  but  few  questions  that  are  doubt- 
ful, and  upon  which  the  views  of  some  of  our 
best  courts  differ.  It  is  not  the  nature  of  the 
American  courts  to  be  inconsistent  with  each 
other  or  with  themselves  for  a  grreat  length 
of  time. 


PREFACE.  V 

Gf  the  merits  of  this  work,  if  it  has  any,  I 
have  nothing  to  say.  The  author  is  indiscreet 
that  does  that.  Let  him  launch  his  book  upon 
the  sea  of  pubhc  opinion.  If  the  work  is 
worthy  and  has  merits,  it  will  be  a  success  ;  if 
not  worthy  and  having  no  merit,  it  will  sink. 
I  now  launch  this  work  upon  that  great  sea, 
which,  upon  matters  of  this  kind,  has  neither 
sympathy  nor  favoritism.  I  trust  that  it  will 
not  sink. 

Clark  D.  Knapp. 

Albion,  N.  Y.,  November  i,  1887. 


CONTENTS. 


CHAPTER  I. 

Page. 

Introductory       . i 

CHAPTER  II. 

Co-tenancy        .....           ...  9 

Tenants  in  common     ......  9 

Trustees  of  a  school  district       .          ....  13 

Accounting     ........  14 

Tenants  by  entirety ,  21 

CHAPTER  III. 

Parties         .          . 23 

Who  may  claim  partition       .          .         .         .          .  27 

Wife's  inchoate  right  of  dower          ....  31 

CHAPTER  IV. 

When  partition  cannot  be  maintained          .          .  37 

Held  by  husband  and  wife        ...           .         •  38 

Complicated  cases       ...          .         .           .  41 

When  no  personal  property  to  pay  debts          .          .  44 
Receiver  in  supplementary  proceedings       ,         .         .46 

CHAPTER  V. 

Possession,  actual  and  constructive     ...  49 

Complete  possession         .         .         .           .         .         •  5^ 

Constructive  possession       .....  54 

Under  Mexican  law       .         .  .         .  .         -59 

[vii] 


Vlll  CONTENTS. 

CHAPTER   VI. 

Page. 

Adverse  possession        .......     64 

Possession  by  purchaser         .....         67 

Color  of  title    ........     77 

What  is  not  adverse  possession       ...  .80 

Who  may  acquire  ....  .         .     82 

CHAPTER  YU. 
Parties 89 

Rule  before  Revised  Statutes         ....  92 

Death  pending  action       .  .         .  .         .         -94 

Incumbrances       .......  97 

Owners  of  separate  parcels         .....   102 

New  York  rule       .  .         .         .         .  .         .105 

Marriage  pending  action  .         .         .         .  .108 

CHAPTER  VIII. 

Infants         .         .         .         .         .         .         .  .         .111 

Guardian     .         .          .         .         .         .  .         .          114 

Rule  under  chapter  277,  N.  Y.  Laws  1852  .         .    n? 

Jurisdiction          .         .         .           .         .  .          .         121 

CHAPTER  IX. 

Jurisdiction 124 

Supreme  court     .         .         .....         126 

In  Massachusetts      .         .         .         .         .         .         .129 

County  court         .         .  .         .         .         .         .131 

Special  term     ........    133 

Chancery     .         .         .         .         .         .         .         .  134 

CHAPTER  X. 

Partition  where  devise  has  been  made         .         .  139 

Under  New  York  Act  of  1853  ....  144 

Claim  hostile  to  will     ...  .  .  146 

Vested  estate  .......  148 

CHAPTER  XI. 
The  complaint  .......         150 

In  Massachusetts  and  Maine     .....    152 


CONTENTS.  IX 

The  complaint — continued.  Page. 

Rights  of  purchaser       ......  155 

Bill  in  equity            .......  157 

Mis-joinder          .         .          .....  159 

Infants           .          .           .          .           ....  161 

Title          .         .          .         .          ....  164 

CHAPTER  XII. 

The  answer 166 

Statement  of  new  matter       .....         168 

What  it  may  put  in  issue  .         .  .         .         .171 

Possession  .  .         .  .         .         .         .     .     175 

General  rules  ......  ,  177 

CHAPTER  XIII. 

Trial  of  issues          .         .         .         .         ...  179 

Reference        .         .         .          .         .         .         .  .180 

Amendments        ....          ...  184 

Parol  evidence         .          .         .         .         .         .  .187 

Statute  of  limitations   ......  193 

Rule  in  equity         .......     197 


CHAPTER  XIV. 
Interlocutory  judgment  .....     202 

Parties          .          .         .         .         .         .         .  .         204 

Commissioners,  appointment  of         ...  .     207 

Commissioners,  duty  of        .         .         .         .  .         213 

Guardian  ad  litem           .            .         .          .          .  .215 

North  Carolina,  rule  in       .           .         .          .  *         217 

Owelty          .           .         .         .         .           .         .  .219 

CHAPTER  XV. 

Commissioners        .         .         .         .         .  .         .         .220 

Commissioners'  proceedings,  notice  of  .         .         222 

The  whole,  partition  of          .           ,  ...     224 
Acfiuiescence,  doctrine  of           ....         226 

In  chancery          ...           .  .         .         '.     230 

Commissioners,  meeting  of          .         .  .         .          233 

Commissioners,  expenses  of     .         .  ...     234 


CONTENTS. 


CHAPTER  XVI. 

Page 

Receiver  in  partition 237. 

When  appointment  usually  made          .         .         .  241 

CHAPTER  XVII. 

Final  judgment         . 243 

Dower  interest           .           ....           .  245 

Should  settle  rights  of  parties         ....  249 

Title,  question  of       .          .         .          .          .          .  251 

Judgment  may  be  corrected          ....  253 

Attorney's  lien         ....          ...  256 

CHAPTER    XVIII. 

Liens 265 

Court,   duty  of 267 

Under  New  York  statutes 268 

Creditors,   notice  to         .         .         .         .         .         .271 

Application  for  money 274 

Court  controls  funds 276 

CHAPTER  XIX. 

Dower 279 

Husband,  power  of 281 

Dower,  conveyance  of      .....         .  285 

Passes  with  sale,  when         .         .         .      *   .           .  292 

Dower  in  part  of  the  lands 207 

Dower  in  equitable  estate 299 

Widow  entitled  to  an  account           ....  303 

Dower  an  absolute  right 305 

CHAPTER  XX. 

Unknown  owners 3°^ 

To  make  perfect  title 31° 

Allegations  as  to  unknown  owners    .         .         .         •  311 

CHAPTER  XXI. 

Sale 3^3 

Directions  in  interlocutory  judgment         .         .         .  314 

Kentucky  rule 3^6 


CONTENTS.  XI 

Sale — continued.  Page. 

Infant's  share           .         .         ,         .         .         .  .319 

Sale,  report  of     ....         .          .  .         320 

Power  of  the  court          .....  .     323 

Discretion  of  the  court       .           ....  326 

Competition     ......          .  .   329 

Right  of  commissioners  to  purchase      .          .  .        332 

CHAPTER  XXII. 
Final  judgment  confirming  sale        ....  335 

Omission  from  advertisement         ....        337 

When  a  bar      ........    338 

Confirmation  of  sale     ....  ,  .       340 

CHA.PTER  XXIII. 

Costs 341 

In  default         ........  343 

To  guardian         .......  345 

Stenographer's  fees         ......  347 

Additional  allowance         ......  349 

Disbursements     .  ......  352 

Payment 356, 

CHAPTER  XXIV. 

Distribution  of  proceeds         .....  358 

New  York  rule           .......  359 

Wife's  share         .......  361 

Remainders     ,.,.....  362 

Unknown  defendants          .....  367 

Pennsylvania  rule  .  .  .         .  .         -371 

CHAPTER  XXV. 

Equality  of  partition  and  adjustmemt  of  rents    .  373 

Lunatic's  property         ......  375 

Incumbrancers  .......  379 

Improvements      .......  381 

Rents 385 

Object  of  partition       .         .         ,         ,         .          .  387 


xii  CONTENTS. 

CHAPTER    XXVI. 

Page. 

Abatement 3^9 

Death  after  judgment         .....  39° 

CHAPTER  XXVII. 

Guardians  and  committees 39^ 

Lunatic  as  party         .         .  ....  398 

Jurisdiction  of  court •  399 

Guardian,  duty  of 4°! 

Guardian,   petition  for 403 

Power  of  conveyance  .....  4^5 

Importance  of  appointment 407 

CHAPTER  XXVIII. 

People  as  parties 409 

Recording  judgment 413 

CHAPTER  XXIX. 
Purchaser '    414 

Decree  must  be  obeyed  .         .         .         .         .         .416 

Mistake  in  boundary  .....         420 

Title 421 

Security  by  purchaser  .         ,         .         .         .4-5 

Liable  for  loss    ....  .        .        426 

CHAPTER  XXX. 

Review  of  judgment  and  setting  aside  sale      .         .  429 
Collusion         ........     430 

Special  cases         .......         431 

Review  by  appellate  court         .....    437 

Regularity  of  sale        .         .         .         .         .         .         441 

CHAPTER  XXXI. 

Limitation  of  action  ......  443 

As  a  defense        .         .  .....  447 

Statutory  rules         .......  449 

Laches t  451 

Computation  of  time 457 


co\TENTS.  xiii 
CHAPTER  XXXII. 

Page. 

Voluntary  partition 4^9 

Wives  should  join  in  .          .         .         .         .         .  460 

Statute  of  frauds             .         .          ....  463 

Does  not  destroy  co-tenancy,  wlien      .         .          .  467 

In  case  of  infancy         ...             ...  473 

CHAPTER  XXXIII. 

Color  of  title         . 47^ 

Adverse  possession 481 

Title  of  mortgagee      ...          ...  484 

CHAPTER  XXXIV. 

Partition  of  personal  property        ....  488 

Property  that  may  be  separated    ....  489 


Vessels 


491 


Proceedings        .         .  .         .  ...         492 

CHAPTER  XXXV. 


494 


Appeal  ........ 

From  interlocutory  judgment      ....         497 

Meaning  of '*  final  judgment "       .         .  .         .     500 

Receivers  .         ,         .         .         .         .         .         .501 

Discontinuance      ........       503 

Costs 507 


Addenda      .  

Forms      .         .  

General  Index 589 

Index  to  Forms  .,,,,,,         62S 


508 
509 


TABLE  OF  CASES. 


Page. 
Abbott  V.   Curran 98  N.Y.  665 338 

Abby     Homestead     Association      v. 

Willard 48  Cal.  614 80 

Ackerman  v.   Shelp 3  Halst.  125.. 304 

Ackley  v.  Dygert- 33  Barb.  1 76 28,  148 

V.  Ackley 1  C.  R.  405 iS3 

Acraman  v.  Cooper 10  M.  &  W.  585 4S7 

Adams  v.  Nellis 59  How.  Pr.  385 389 

V.  Stevens 49  Me.  362 420 

Agar  V.  Fairfax 17  Ves.   533 190 

Agnew  z/.  Johnson 17  Pa.  St.  377 11 

Aikman  v.  Harsell 98  N.  Y.  186 305 

V.  Harsell 63  Plow.  Pr.  no 302 

Albright  v.  Flowers 52  Miss.  246 317 

Aldridge  v.  Kincaid 2  Littell,  393 84 

Alexander  v.  Alexander 6  C.  R.   38 372 

V.   Polk 39  Miss.  755 456 

V.  Worthington 5  Md.  471 505 

Allard  v.  Carieton i  N.  E.   R.  853 195 

Allen  V.   Libbey i  N.  E.  R.  73 lS3 

V.    Hall 50  .Me.  253-263 186,  195,  228 

V.    Rivington 2  Saund.   in 4S4 

V.  Smith I  Eeigh,    231 85 

Allis  V.   Billings 6  Vict.  415 396 

Aivord  V.  Beach 5  Abb   Pr.  451.  273,  329,  331,  416,  418 

American  Ins.  Co.  v.  Oakley 9  Paige,  259 431 

Ames  V.   Downing i  Bradf.  321 421 

[xv] 


XVI  TABLE    OF    CASES. 

Pajfe. 

Anders  v.  Anders 2  Dev.   529 217 

Andrews  v.  Betts 8  Hun,  322 132,  492 

Appleton  V.   Boyd 7  Mass.   131 18 

Argall  V.   Raynor 20  Hun,  267 423 

Armour  v.  White 2  Hawy.    87 486 

Arms  V.   Lymau 5  Pick.   210 130 

Arden  v.  Patterson 5  Johns.  Ch.  48 85 

Arnold  v.  Arnold 7  Pick.  12 209 

V.   Butterfield 92  Ind.  403 322,423 

V.  Dixon 19  L.  R.  Eq.    113 363 

z'.  Rich  Iron  Works i  Gray,   434 396 

Arthur  2/.  Gayle 38  Ala.   259 11 

Ashley  v.  Brightraan 21  Pick.  285 217 

Ashton  v.  Brevitt 14  M.  &  W.  180 487 

Aston  V.  Meredith 13  L.  R.   Eq.  492 36 

Astor  V.  Palache 49  How.  Pr.  231 350 

Athause  v.  Radde 3  Bosw.  410 114,  116 

Auld  V.  Smith 23  Kan.  65 502 

Austin  V.  Ahearne 61  N.  Y.  6 181 

V.  Holt 32  Wis.  478 80 

Ayres  v.  Carver 17  How.  U.  S.   591 502 

B. 

Badger  v.  Badger 2  Cliff.  137 451 

Eadgley  v.  Bruce 4  Paige,  98 293 

V.   Hilton 14  Hun,  3 143 

V.  Hobson L.  R.  5  Ch.  App.  180 11 

V.   Rust 15  Me.  440 219 

V.   Woodbury 50  Vt.  166 420 

Baird  v.  Baird i  Dev.  &  Batt.   524 218 

Bake  7'.  Smiley 84  Ind.    212 501 

Baker  v.  Backus 32  111.  79 241 

V.   Lorillard 4  N.  Y.  257 477 

w.  Swan 32  Md.  355 74 

V.  Vining 30  Me.    127 187 

Baldwin  v.  Aldricli 34  Vt.   529 324 

V.  Humphry 44  N.  Y.  609 40,  176 

Ball  V.  Palmer 81  111.   370 448 

Ballou  V.  Hale 47  N.  H.  350 464 


TABLE    OF    CASES.  XVll 

Page. 
Bank  Alexandria  v.   Taylor 5  Cranch  C.  Ct.  314 442 

Barber  v.   Graves 18  Vt.  290 407 

Baring  v.  Nash i  V.  &  B.  551 268 

Barker  v.  White 58  N.  Y.  211 372 

Barnard  v.  Jewett 97  Mass.  87 187 

V.   Onderdonk gS  N.  Y.   158 175 

Barney  v.   Leeds 54  N.   H.   12S 381 

V.   Mayor  of  Baltimore 6  Wall.  280 136,  137 

Barns  v.  Somerv-ille 4  W.   R.   302 348 

Barnum  v.  Landon 25  Conn.  137 447 

Bartlett  v.  Janeway 4  Sandf.  Ch.  396. 291,  362 

Barlow  v.  Bell i  A.  K.  Marsh.  246 60 

Bassett  v.  Welch 22  Wis.  175 483 

Bateman  v.  Alien Cro.  Eliz.  437 484 

Bates  V.  Campbell 25  Wis.  613 483 

Baugh  V.  Baugh 4  Bibb,  556 502 

Baxter  v.   liozier 5  Bing.  28S 448 

Bailies  v.  Bussey i  Ves.  Sr.  494 I32' 

V.  Knowles 5  Greenl.    157 312 

Bayly  v.  Boulcott 4  Kuss.  345 187 

Beach  v.  Mayor 45  IIow.   357 42- 

Beardsley  v.  Knight 10  Vt.  185 420,  470 

Beatty  v.  Commonwealth  of  Pennsyl- 
vania  5  C.  R.  841 372 

W.Mason 30  Md.   409 77 

Bedell  v.  Shaw 59  N.  Y.  46 72,  77- 

Beebe  v.  Griffing 14  N.  Y.  235 25,  gg 

V.  Griffing 6  N.  Y.  465 207,  497 

Beekman  v.  Beekman i  Caines,  121 177 

Beery  v.  Irich 22  Grat.  614 307 

Bell  V.  Lyman r  Mon.  (Ky.)  139 il 

Bellas  V.   Dewart 17  Pa.  St.   85 216 

Bemis  v.  Stearn 16  Mass.  122 129 

Benedict  v.  Howard 31  Barb.   571 11 

V.   Seymour 11  IIow.  176 292,  297 

Benje  v.  Creach 21  Ala.    151 456 

Benkard  v.   Babcock 27  IIow.  Pr.  3()i 372 

Bennett  v.  Moore i  Ch.  \).   692 26r 

Bergen  7>.  Wyckoff 11  N.  Y.  Week.  Dig.  570 106 

V.  Wyckoff 84  N.  Y.  659 32 

2 


XVIU  TABLE    OF    CASES. 

Page. 

Berrien  v.  Conover i  Harr.   109 303 

Bertles  v.  Nunan 92  N.  Y.  152 16 

Bethea  v.  McColl 5   Ala.   308 27,  493 

Bethel  v.   McCooI 46  Ind.  303 20 

Bick   t/.  Motly 2  M.  &  K.   312 182 

Bigelow  V.  Ames 18  Minn.  527 457 

V.  Jones 10  Pick.  161 87 

Billinghurst,  Ex  parte Amb.  104 241 

Billington  v.   Forbes 10  Paige,  487 431 

Bingham  v.   Barley 55  Tex.   281 398 

Birdsall  v.  Patterson 51  N.  Y.  44 180 

Bissell  «.  Briggs 9  Mass.  462 125 

Black  «.  Wright 9  Ired.  447 476 

Blackwood  v.  Van  Villet 30  Mich.  118 482 

Blakeley  v.  Calder 15  N.  Y.  617.  go,  120,  128,   338,  416 

V.  Calder i  Smith,  617 439 

V.  Calder 13  How.   Pr.  476 315 

Blakely  v.  Bestor 13  111.  708 482 

Blanchard  v.  Moulton 63  Me.   434 74 

Blood  «.  Blood 23  Pick.  80 301 

Bloom   V.  Burdick i   Hill,   130 407 

Blue  V.  Blue 79  N.  C.   69 327 

Bobb  V.  Woodward 50  Mo.  95 84 

Boerum  v.  Schenck 41  N.  Y.   1S2 331 

Bogardus  v.  Parker 7  How.   305 107,  1 59 

Bogert  V.   Bogert 45  Barb.  121 115,  182 

Bolgiand  v.  Cooke 19  Md.   373 498 

Boiling  V,  Teel 7  Va.    L.  Jour.  604 466 

Bolster  v.  Cushman 34  Me.  428 300 

Bompart  v.  Roderman 24  Mo.   398 466 

Bond  V.  McNiff 38  N.  Y.  Sup.  Ct.  83 297 

Bonner  v.  Kennebeck 7  Mass.  475 43,  104 

Bonner,  Petitioner 4  Mass.  122 132 

Boone  v.  Boone 3  Md.  Ch.  Dec.  497 441,  499 

Bool  V.  Mix 17  Wend.  119 398 

Borden  v.  Fitch 15  Johns.   141 310 

Bortwick  v.  Carruthers i  Term  R.  648 123 

Boston  Bank  v.  Chamberlin 15  Mass.   220 398 

Bostwick  V.  Beach 5  C.  R.  388 290 

Bowman  z/.  Cockrill 6  Kan.    131 824 


TABLE    OF    CASES.  XIX 

Page. 

Boyd  V.  Dowie 65  Barb.  237 38,  102 

Boynton  v.   Boynton 26  Moak's  Eng.    R.  81 347 

V.   Grant 52  Me.    220 255 

Brace  v.  Ried 3  Iowa,  422 216 

Bracket  v.    Narcross i  Green.  8  g 72,  83 

Brackett  v.  Ridlon 54  Me.    434 255 

Bradbury  v.  Wagenhorst 54  Pa.  St.   180 505 

Braddee  v.   Brownfield 2  W.  &  S.   279 504 

Bradshaw  v.  Callaghan S  John.   558 27,  102,  156 

Bradstreet  v.  Huntington 5  Peters,  402 482 

Braker  z/,  Devereaux 8  Paige,    513 205 

Brandon  z/.  Brown 106  III.   527 381 

Brandt  v.   Ogden i  John.   156 73 

Branscomb  v.   Gillian 55  Iowa,  235 324 

Brede  v.  Lathron 32  N.  Y.  535 386 

Brevoort   v.   Brevoort 70  N.  Y.  136 30,  337 

Bride  v.  Wait 23  111.   507 481 

Bridges  v.   Howard iS  Iowa,   116 437 

Brigham  v.  Eveleth 9  Mass.  538 10 

Brightman  v.  Eddy 97  Mass.  478 n 

Broadway  v.  Buxton 43  Conn.  282 420 

Brock  V.  Yonque 4  Ala.   584 485 

Brooks  V.   Bruyn 35  111.   394 479.  481 

Brookfield  v.  Williams i  Green  Ch.   341 206,  361 

Brown  v.   Brown 8  N.  H .  93 44 

V.   Bulkley 11  Cush.    168 229 

V.  Frost 19  Paige,    244 431 

V.  Keyser 53  Ind.    85 261 

V.  Martin 20  Barb.  123 415 

V.  Sceggell 2  Foster  (N.    II.)  548 216 

z*.  Wheeler 17  Conn.    345 467 

V.   Windmuller 36  N.  Y.  Sup.  5S7 354 

V.    Wright 13  N.  J.  240 5^5 

Browning  v.  McCracken 97  Ind.  280 500 

Brownell  v.   Brownell 19  Wend.   367 23,  439 

V.    Bradley 16  Vt.  105 218 

Brownson  v.   (iifford 8  How.    389 105,  375 

Brundt  v.  Ogden i  Johns.   156 05 

Brush  V.  Ware 15  Peters,  93 52 

liryan  z'.   Slump 56  Am.  P)ec.    139 473 


XX  TABLE    OF    CASES. 

Page. 

Bryant  z/.  Owen i  Kelly,  355 406 

Buffalo  Savings  Bank  v.  Newton 23  N.  Y.  160 433 

Bullard  v.   Bowers 10  N.  l\.   500 301 

Bullwinker  v.   Ryker 12  Abb.   Pr.  311 159,  379,  386 

Bumgardner  v.   Edwards 85  Ind.  126 472 

Burgess  v.   Eastham 3  Bush,  476 324 

Burgin  t'.  Burgin 82  N.    C.   196 ' 335 

Burham  v.  Peabody 3  How.   Pr.   109 415 

Burhans   v.   Burhans 2  Barb.  Ch.  398.  24,  42,  95,    103,  218 

Burkhalter  v.   Edwards 16  Ga.  593 485 

Burling  v.   Read 1 1  C.  B.  904 59 

Burleson  v.  Burleson 28  Tex.    383 190 

Burnell  v.  Burnell 27  E.  R.  472 261 

Burning  "'.   Nash i  Ves.  &  B.   555 7 

Burns  v.   Swift 2  Serg.  &  R.  439 187 

Burrough  v.  Rieger 12  How.  171 163 

Burton  v.   Williams 5  B.  &  Aid.   395 II 

Busch  z/.   Huston 75  111.   343 8°.  44^ 

Bush  V.  Hicks 60  N.  Y.   29S 420 

V.  Treadwell 11  Abb.   N.   S.   27 127 

Buzick  -'.   Buzick 44  Iowa,  259 304 

Buzzell  V.  Gallagher 28   Wis.  678 468 

C. 

Calhoun  v.   Plays 42  Am.  Dec.   275 473 

V.   Hays 8  Watts  &  S.  132 478 

Call  V.   Barker 12  Me.   327 191 

Campbell  7'.   Campbell 48  How.  255:    234 

V.   Campbell 2  N.  J.  Eq.   268 260 

V.    Lowe g  Md.   508 27,441,499 

V.    Wilion 3  East,   244 74 

Canbeis  v.  McDonald 2  N.  Y.  S.   R.  130 157 

Canfield  v.  Ford 16  How.  473 28,  106 

Canning  v.   Canning 2  Drewry,  434 230 

Canter  v.  Am.  &  Ocean  Ins.  Co 3  Peters,  307 499 

Carpenter  v.  Davis 72  111.  14 348 

V.    De  Noon 290^0,379 81 

V.    Schermerhorn 2  Barb.  Ch.   314 184.  319,  470 

Carrico  v.  Tarwaler i  West.  R.  144 194 

Carson  v.   Hughes 6  West.  R.  665 422 


TABLE    OF    CASES.  XXI 

Page. 
Cartwright  v.  Pulteney 2  Atk.  380 375 

Cassamajor  v.  Strode i  Sim.  &  Stu.  381 427 

Case  t".  Price 17   How.    348 349 

Caster  v.  Stark 19  111.   328 104 

Catiin  V.  Gressler 57  N.  Y.  363 328 

V.  Hull 21  Vt.    152 505 

Catlino  v.  Decker 38  Conn.  262 82 

Cecil  V.   Dorsey i  Md.  Ch.  225 230 

Challefou.K  z\  Uucharme 4  Wis.    554 87 

Chalon  v.  Walker 7  La.  Ann.  477 105,  148 

Chamberland  v.  Dempsey 22  How.  Pr.   256 329 

Chamberlin  v.  Donahue 44  Vt.  57 405 

Chandler  v.   Spear 22  Vt.  88 55 

Chapin  v.  Sears 18  F.  R.  814 46,  157 

Chaplin  t\  Young 33  Eeav.  330 241 

Chase  v.  Williams 71  Me.   190 254 

Chespeake    &     Ohio   Canal    Co.     v. 

Young 3  Md.  480 441,  499 

Cheeseborough  v.  Agate 26  Barb.  603 182 

Cheesman   v.   Thorn i  Edw.   629 2g 

Cheney  v.   Ringgold 2  Harr.  &  J.   87 483 

Childs  V.  Shower 18   Iowa,  261 481 

Chipman  v.  Montgomery 63  N.  Y.  221 147 

Chism  V.  Keith i  Hun,  589 92 

Chouteau  v.  Paul 3  Mo.   260 147 

Church  V.  Church 3  Sandf.  Ch.  437 323 

V.  Sterling 16  Conn.  899 369 

Claflin  V.  Clark 22  Week.  Dig.  137 434 

Clapp  V.   Bromagham 9  Cow.  530 134,  450 

Clarendon   7/.  Ilornsby i   Pr.  Wms.  446 232 

Clarke  v.  Clarke 2  N.  Eng.   213 405 

V.  City  of  Rochester 29  How.  97 352 

V.  Clark 14  Abb.  Pr.  299 116 

Clark  V.  Dillon 97  N.  Y.  379 169 

V.  Cilbert 38  Conn.  94 82 

Ciason  V.  Ciason 6  Paige,  541 213,  326 

Claton  V.  Yarington 23  Barb.  144 186 

Clemens  v.  Clemens 37  N.  Y.   59. .  128,  135,  209,  247,  2f)() 

Clements  7;.  Yturria 81  N.  Y.  2S5 ?4 

Clestcr  V.  Gibson 45  Ind.  10 4'j7 


XXU  TABLE    OF    CASES. 

Page. 

Clowes  V.  Van  Antwerp 4  Barb.  416 497 

Clute   V.  Voris 31  Barb.  511 484 

Clymer  v.  Dawkins 3  How.  U.  S.  674 86 

Coates  V.  Goddard 7  Abb.  339 350 

Cobleigh  v.  Younge 15  N.   H.  493 54 

Cochran  v.  Carrington 25  Wend.  409 10 

Cockling  -v.  Brown 57  Barb.  265 466 

Coker  v.  Pitts 37  Ala.  693 317 

Coleman  v.   Coleman 4  Parsons  Penn.  R.  470 384 

V.  Doe 4  Smedes  &  M.  40 52 

V.  Lyne 40  Rand.   454 497 

Cole  V.   Hall 2  Hill,  627 251,  311 

Coles  V.   Coles 15  Johns.  319 102,  284 

V.  Wood 2  Pat.  &  H.  197 466 

Colgan  V.    Pellens 2  C.  R.  254 481 

Collins  V.   Dickinson i    Hayw.   240 31 

Coloin  V.  Wolford 20  Md.  395 56 

Colton   V.    Smith 11  Pick.    311 191 

Comer  v.  Comer.. .  .6  West.  R.    72 193,  449 

Compton  V.  Matthews 22  x\m.  Dec.    167 466 

Comstock  7^.  Carr 6  Wend.  526 118 

Conklin  v.  Conklin 13  Sandf.  Ch.  64 378 

Congdon,  Matter  of 2  Paige.  566 135,  401 

Connolly  v.  Smith 21  Wend.  59 301 

Conolly  V.  Conolly 16  How.  224 182 

Conover  v.   Porter 14  Ohio  St.  450 305 

Cook  V.  Arnham 3  Pr-  Wm.   283 452 

V.    Allen 2  Mass.  462 26,  129 

V.    Farnam 21  How.  2B6 415 

V.  Knickerbocker 11  Ind.   230 208,  497 

V.  N.  Y.  Float.  Dry-dock  Co. .  i  Hilt.    567 359 

V.  Rawdon 6  How.  233 407 

z/.  Whipple 55  N.Y.    150 126 

Coon  V.  Knapp 13  How.    175 394 

Cooper  e/.  Garesche 21  Mass.  151 355 

V.   Ord 60  Mo.  420 77 

V.   Roche 36  Md.   563 441 

Cooter  V.  Dearborn 2  West.  R.  399 381,  do6,  448 

Copper,  &c.  Co.  v.  Spencer 25  Cal.    18 55 

Corning  z'.  Smith 6  N.Y.  82 295 


TABLE    OF    CASES.  XXlll 

Page. 

Coming  v.  Troy  Iron  Co 44  N.Y.   177 74 

Cortlandt  v.  Beekman 6  Paige,    492 1 56 

Corwitiie  v.   Griffing 21  Barb.  9 158 

Cose  V.  Smith 4  Johns.  Ch.   271 375 

Cowell  V.  Lammers 21  Fed.  200 58 

Coxe  V.   Smith 4  Johns.  Ch.  271 137 

Coyle  V.  Clear}' 116  Mass.  20S 444 

Crandall  v.   Hoysradt i  Sandf.  Ch.  40 256 

V.   Stiger 58  N.Y.   625 433 

Crary  J'.  Goodman 22  N.Y.   176 66 

Cray  v.  Willis 2  Pr.  Wm.  529 280 

Creacraft  v.  Wions Addison,  351 303 

Creighton  v.  Ingersoll 20  Barb.  541 256 

Cressen  v.  Miller 2  Watts,  272 84 

Crittenden  v.  Keenan iS  Week.  Dig.  502 413 

Crispin  "'.  Hannavan 50  Mo.    536 77 

Crocker  v.  Clements 23  Ala.   296 451 

Crocker  v.  Fox i  Root,   323 281 

Croghan  v.   Livingston 6  Abb.   350 416 

V.   Livingston 17  N.Y.  225 117 

Cromwell  f.    Hull 97  N.Y.   209 32 

Crosby  v.   Buchanan 23  Wall.  420 496,  502 

V.  Wadsworth 6  East,  602 86 

Crosier  v.  McLaughlin i  Nev.    348 176 

Crowell  z'.  Beebe 10  Vt.  33 55 

Cruger  v.  Douglass 2  N.Y.  571 208,  497 

Culver  V.  Culver 2  Root.  278 44 

Cummings  v.  Wyman 10  Mass.  492 87 

Cunningham  v.  Cassidy 7  Abb.  Pr.  183 329 

V.  Shannon 4  Rich.  Eq.  135 300 

Curtis  V.  Coleman 22  Grant,   562 384 

z*.  Snead 12  Grant,  260 286 

Cusack  V.  Cusack 43  Barb.  546 476 

Cushman  v.  Loker 2  Mass.   106 370 

Cutler  w.  Allison 72  111.    113 444 

Ciitts  V.  Gordon 13  Me.   474 123 

Cutters  V.  Cowper 4  Taunt.  547 54 

D. 

Dade  v.  Irwin 2  How.  U.  S.  382,  391 506 


XXIV  TABLE    OF    CASES. 

Page 

Dain  v.  Cowing 22  Me.   347 n 

Dale  V.  Dale 3  West.  264 381 

V.  Faivre 43  Mo.   556 483 

Dalrymple  v.  Lamb 3  Wend.  424 407 

Damainville  w.  Main 32  N.Y.    197 12 

Dameron  v.  Jameson 71  Mo.    100 190 

Damm  v.  Moon 48  Mich.  510 305 

Dana  J/.   Howe 3  Kern.    306 182 

Danbury  v.  Coghlan 12  Sim.  507 182 

Danvers  v.   Dorrity 14  Abb.  206 38 

Darcen  v.  Wells 61  How.  Pr.  259 I75 

Dargin  v.  Wells 23  N.Y.  Week.  Dig.   51 240 

Darken  v.  Wallace N.Y.  Daily  Reg.   Aug.  g,  1883. .    104 

Darling  v.  Brewster 55  N.Y.    667 35i 

Davies  v.  Davies 15  Week.  Dig.   118 47 

Davis  V.  Babcock 46  Vt.  655 444 

V.   Davis 2  Ired.   Eq.  607 324 

V.  Dm-gin 2  N.  Eng.    R.  910 254 

V.  Evans 5  I^ed.  525 485 

Davis  V.  Glean 14  How.  310 35° 

V.   Hall 92  111-   85 406 

V.  Helbig 27  Md.  457 44i,  499 

V.    Huston 84  Ind.  272 501 

V.    Logan 9  Dana,  186 21 

V.   Parker 14  Allen,   94 290 

V.   Rhame i  McCord  Ch.  191 60 

Davoue  v.  Fanning 2  Johns.  Ch.   252 421 

Dawson  v.  Lawrence 13  Ohio,  546 47° 

Deerfield  v.  Arms 17  Pick.   41 222 

Delafield  v.  State  of  Illinois 2  Hill,  159 126 

Delisle  v.  Herbs 25  Hun,  485 302 

Dellingham  v.  Brown 38  Ala.   311 485 

Deloney  v.  Walker 9  Porter,  497 323 

Dement  z*.  Williams 44  Tex.   158 466 

Dempsey  v.  Kipp 61  N.  Y.  462 444 

Denning  v.  Corwin 11  Wend.  647 138,  309 

Deputy  V.  Mooney 97  Ind.  463 426 

De  Riemer  v.  Cantillon 4  Johns.  Ch.   85 421 

De  Uprey  ZA  De  Uprey 27  Cal.   331 314 

Devlin  v.  Mayor 15  Abb.  N.  C.  31 350 


TABLE    OF    CASES.  XXV 

Page. 
Dewar  v.  Spence 2  Whart.  211 260 

Dewey  v.  Lamber 7  Cal.   347 20 

Dewit  V.  San  Francisco 2  Cal.  2S9 10 

De  Wittle  v.  Palin 3  Moak's  Eng.  R.  723 121 

Disbrow  v.  Folger 5  Abb.   53 115,  416 

Dick  V.    Hatch 10  Iowa,  3S0 ig4 

Dixon  V.  Warters 8  Jones,   450 250 

Dobson  V.  Racey 3  Sandf.  Ch.  66 421 

Doe  V.  Campbell 10  Johns.  479 485 

V.  Carpenter 18  How.  U.  S.  297 137 

V.  Jesson 6  East,  80. .  w 364 

V.  Phelps 9  Johns.  169, 485 

V.  Frosser Cowp.  217 450 

V.  Redfern 12  East  R.  96 481 

Doolittle  V.  Blakesly 4  Day,  265 87 

Dorsey  v.   Thompson 37  Md.   16 296,  412 

Doubleday  v.  Heath 16  N.  Y.  80 131 

V.    Newton g  How.  71 221 

Douglass  V.  Harrison 2  Sneed,  382 474 

Dow  V.  Jewell 18  N.  H.   353 464 

Dows  V.  Congdon 28  N.  Y.  122 433 

Drake  v.  Ramsey 5  Ohio,  252 398 

Dresser  v.  Dresser 49    Barb.   300 448 

Dresser  v.  Jennings 3  Abb.   240 352 

Drew  V.  Clemens 2  Jones,  212 27,  492 

Dubois  V.  Cassady 5  Week.  Dig.   210 42,  43 

V.  Cassady 75  N.  Y.  298 43,  44 

Dudley  v.  Bachelder 53  Me.   408 187 

Duffy  V.   People 6  Hill,  75 179 

Dufour  V.  Campane 11  Mart.  715 _ 73,  480 

Dugan  V.   Foliett 106  111.  588 3S2,  448 

Duncan  v.  Dick Walker,  281 301 

V.  Dodd 2    Paige,  99 432 

V.  Forrer 6  Binn.   (Penn.)  193 20,  279 

V.  Sylvester 16  Me.  388 188,  218 

Dunham  e/.   Minard 4   Paige,  440 272 

Dupuy  V.   Strong 3  Keyes,  603 12 

Durham  v,   Durham 34  Mo.  447 497 

Durando  v.  Durando 23  N.  Y.   331 302 

Dwyer  v.  Dwyer 13  Abb.   Pr.  N.  S.  269 297 


XXVI  TABLE    OF    CASES. 

Page. 

Dyckman  v.  Valiente 42  N.  Y.  549 11 

Dyer  5^.  Lowell 38  Me.   217 325 

E. 

Eagle  Fire  Ins.  Co.  v.  I,ent 6  Paige,  635 ZQS 

Easton  v.  Pickersgill 55  N.  Y.  310 328 

z/.  Simpson 14  Pick.   98 302 

East  River  Nat.  Bank  v.  Gove 57  N.  Y.  597 444 

Eaton  V.  Eaton 37  N.  J.  L.   108 396 

V.  Tallmadge 24  Wis.    221 468,  469 

Edger  v.  Randolph. 70  Ind.  331 ..  • 505 

Edgerton  v.  Bird 6  Wis.    527 480,  482 

Edmonds  v.  Ames  Iron  Co 24  Conn.   230 104 

Edmondson  v.  Montague 14  Ala.  370 300 

Edwards  v.  Bennett 10  Ired.   360 492 

V.  Edwards 3  Wright,  369 187 

Egberts  v.  Wood 3  Paige,   517 33Q 

Eggle:ton  v.  N.  Y.  &  II.  R.  R.  Co.. 35  Barb.  162 61 

Ehricks  V.  De  Mills 75  N.  Y.  370 372 

Elastic  Fabric  Co.  v.  Smith 100  U.  S.  no 499 

Elderkin  v.  Rowell 42  How.  330 29 

Ellicott  V.  Pearl 10  Pet.  412 58,  486 

Elmendorf  v.  Taylor 10  Wheat.    150 452 

Elrod  V.  Keller 89  Ind.  3S2 193 

Elston  V.   Piggott 94  Ind.  14 423 

Elwell  V.  Burnside 44  Barb.  447 384 

Ely  V.  Ownby 59  ^^o-  437 348 

V.   Scofield 35  Barb.  330 73 

Emeric  v.  Alvaraci^   64  Cal.  529 203,  474 

Emerson  v.  Heelis 2  Taunt.  38 86 

Empire  Bank,  ■Matter  of 18  N.   Y.  215 119 

Enos  V.  Thomas 5  How.  361 495 

Erwin  v.  Lowry 7  How.  U.  S.  172 442 

Estabrooks  v.  Harris 2  Allen,  42 473 

Evans  v.  Coventry 3  Drew.  80 241 

V.  Roberts 5  Barne.  &  Q.  2S9 86 

Ewing  V.  Burnet 1 1  Pet.  52 69 

Ezekiel  v.  Dixon 3  Ga.  146 505 


TABLE    OF    CASES.  XXVll 

F. 

Page. 
Fain\'eather  v.  Satterly 7  Robt.  546 122 

Farewell  v.  Johnson 34  Mich.  342 304 

Farmer's  Loan  &  Trust  Co.   v.  Wal- 
worth  I  N.  Y.  433 369 

Farson  v.  Gorham 4  W.   R.  iii 501 

Ferrers  v.   Cheney i   Eq.  Cas.  4 3go 

Ferris  v.  Brush i  Edw.  Ch.  571. 3C2 

V.  Smith 17  Johns.  221 l6l 

Field  V.  Hauscomb 3  Shep.  367 230 

Finlay  v.  Cook 54  Barb.  9 4^^ 

Fiquet  v.  Allison 12  Mich.  32S il 

Fish  V.  Fish 39  Barb.  513 66 

V.  Fish I  Conn.  559 302 

Fisher  v.  Hersey 78  N.  Y.  387 327,  434 

V.   Hersey 17  Hun,  370 330 

V,   Hersey 12  Week.  Dig.  534 434 

V.    Hepburn 48  N.  Y.  41 351 

Fiske  V.   Kellogg 4  Oreg.  503 317 

V.  Keene 46  Me.  225 354 

Fite  V.  Doe i  Blackf.   127 84 

Fleet  V.  Dorland 11  How.  489 245,  321,  324 

Fleming  v.  Burnham 100  N.  Y.  i 423 

V.  Kerr 10  Watts,  444 474 

Fletcher  v.  Spaulding 9  Minn.   64 457 

Flood  V.   Moore   2  Abb.  N.  C.  91 354 

Florence  v.  Hopkins 46  N.  Y.  182 25,  43,  176 

Floyd  V.  Johnson 2  Litt.  112 452 

Fobes  V.  Shattuck 22  Barb.  568   490 

Foltz  V.  Wert i  W.  R.  852 288 

Fcrd  z'.  Belmont 7  Rob.   97 45 

V.  Knapp I   N.  Y.  S.  R.  362 157 

V.  Knapp 92  N.  Y.   135 175 

V.  Knapp 31   Hun,  522 160 

Forgay  v.  Conrad 6  How.  U.  S.  205 506 

Forman  v.  Marsh 11  N.  Y.  544 1 1 1 

Forrest  v.  Jackson 56  N.  H.  357 79 

Fort  V.  Bard i   N.  Y.  143,  125,  426,  533 181 

Forward  v.  Dcet^ 32  Penn.  St.  69 88 


XXVIU  TABLE    OF    CASES. 

Page. 
Foster  v.  Abbott 8  Met.  598 311 

V.  Bates 7  Lon.  Jur.  1093 369 

V.  Foster i   L.  R.  Ch.  Div.  588 363 

V.  Newton 46  Miss.  661 105 

Fowler  v.   Scott 25  L.  T.  N.  S.  23 364 

Foxcroft  V.  Barnes 29  Me.  129 250,  312 

Francisco  v.  Gates 28  111.  67 286 

Frear  v.   Hardenburgh 5  Johns.   272 86 

Freeman's  Bank  v.  Vose 23  Me.  98 420 

Frelinghuysen  v.  Golden 4  Paige,   203 250 

French  v.  McAndrew 61  Miss.  187 398 

Frentz  v.  Klotsch 28  Wis.  312 483 

Friedman  v.  Goodwin i  McCall,  142 2 

Fringue  v.  Hopkins 4  Mart.  (N.  S.)  224 480 

Frissell  v.  Rozier 19  Mo.  448 473 

Frith  V.  Osborne 18  Moak's  Eng.  R.  724 36 

Fritz -'.  Joiner 54  111.  loi 78 

Frizzle  J'.  Veach i  Dana,  211 85 

Frothingham  v.  Haley 3  Mass.  70 369 

Fulton  V.  Brunk 18  Wend.  509 356 

V.  Rosevelt i   Paige,   178 407 

Furman  v.  Furman 12   Hun,  441 186,  504 


Gage  V.  Bissell 8  W.  R.  54 478 

V.  Reed 104  111.  509 478 

Gaines  v.  Green 33  N.  J.  Eq.  603 262 

V.  Lizardi i  Wood,  56 58 

Gallic  V.  Eagle 65  Barb.  583 29 

Galpin  "'.  Page 18  Wall.  350 194 

Gardner  v.  Collins 2  Peters,  56 98 

■b.    Luke 12  Wend.  269 269 

V.  Ogden 22  N.  Y.  327 421 

Gardner  Mfg.  Co.  v.  Heald 5  Me.  584 477 

Garvey  v.  Jarvis 54  Barb.  179 379 

Gash  V.  Ledbetter 6  Ired.    185 200 

Gaskin  V.  Anderson 55  Barb.  259 331 

Gates,  Matter  of 26  Hun,  179 4g5 

V.  Salmon 46  Cal.  361 474 


TABLE    OF    CASES.  XXIX 

Page. 
Gavin  v.  Graydon 41  Ind.  559 195 

Geib  V.  Topping S3  N.  Y.  46 348 

Gelston  v.  Hoyt 13  Johns.  561 129 

Genet  v.  Davenport 59  N.  Y.  64S 372 

Gent  V.  Lynch 23   Md.  5S 55 

Gerard  Life  Ins.  Co.  v.  F.  &  M.  Bank.  57  Pa.  St.  394 269 

German  v.  Machin 6  Paige,  2S3 176 

Gernet  v.  Lynn 31   Pa.  St 94 

Gibson  v.  Crehore 3  Pick.  475 302 

Gilbert  v.  Dickerson 7  Wend.  449 11,  489 

V.  Smith 2  Ch.  Dec.  686 261 

Gillespie  v.  Torrance 4  Bosw.  36 444 

Gilliat  V.  Giiliat 9  L.  R.  Eq.  60 330 

Gillis  V.  Brown 5   Cow.  38S 302 

Goesele  v.  Bimeler 14  How.  U.   S.  5S9 387 

Goodhue  v.  Barnwell Rice  Eq.  236 468 

Gordon  v.  Sterling 13  How.  408 286,  394 

Gore  z;.    McBrayer 18  Cal.   582 55 

Gorham  v.   Gorham 3  Barb.  Ch.  24 31,  104,  398 

Gormly  v.   Mcintosh 22  Barb.  271 494 

Gotendorf  v.    Goldschmidt 83  N.  Y.  no 119 

Gott    V.  Cook 7  Paige,   521 346 

V.  Williams 9  How.  59 171 

V.  Womack 2  Ala.   83 302 

Goundie  v.  Northampton  Water  Co.  .7  Barr,   238 1S6 

Graham  v.    Graham 8  Bush,  324 388 

V.  Peat I  East.  R.  244 A'^(^ 

V.    Pinckney 7  Robt.  147 122 

Grant  v.    Winborne 2  Hawy.  57 70 

QX2A.SV.  Grats 4  Rawle,  411 477 

Gratt  z/.  Gratt 18  111.    107 194 

Gray  v.  Gray i  Beav.  199 4^7 

V.  Parpart 106  U.  S.  689 190 

Graydon  v.   Graydon i  McMullan  Eq.  63 206 

Green  v.  Bates 7  How.  296 304 

V.   Graham 5  Ham.  264 215 

V.  Putnam i  Barb.  500 192,  302,  377,  379 

Greene  v.  Pcttingill 47  N.  II.   375 55 

Greenway  v.  Sewell 18  111.  53 219 

Greer  v.  Blancher 40  Cal.   194 19 


XXX  TABLE    OF    CASES. 

Page. 

Gregory  v.   Gregory 69  N.  C.  522 195,  260,  319,  324 

V.  Lenning 54  Md.  51 498 

Greiner  7/.   Klein 32  Mich.    17 285 

Griffith  V.   Bogert 18  How.  U.  S.   158 442 

Griswold  v.   Butler 3  Conn.  231 396 

Groghan  v.    Livingston 17  N.Y.   225 134 

Grove  v.   Comyn 18  L.  R.  Eq.  357 399 

Guernsey  w.    Mill 80  N.Y.   iSi 372 

Guthrie  v.    Lowrey 84  Pa.  St.  537 384 

H. 

Haddrick    v.  Wilmarth 5  N.  H.   181 84 

Hale  z/.   Clauson 60  N.Y.   339 433 

Hagerty  v.    Andrews 4  Civ.  Pro.  323 174 

Halfhide  v.   Robinson 8  Moak's  Eng.  R.  918 46,  96 

Halford  v.   Tetherow 2  Jones  N.  C.  303 20 

Hall  V.  Fisher 20  Barb.  446 386 

V.   Morris 13  Bush,  322   191 

V.  Partridge 10  How.  188 201,  270,  273 

Hallam  v.   Mumford i  Root,  58 123 

Hallenbeck  v,   Eradt 2  Paige.   316 361 

Hallett  7'.   Righters 13  How.  43 4I5 

Halsted  v.    Halsted 55  N.Y.  442 261,  269,  379 

Ham  7'.  PL-rni 34  Me.   218 203 

V.  PL-imersIey 7  N.Y.  L.  Ob.  127 256,  342 

Hamilton  v.  Buckwalter 2  Yeates,  389 303 

V.  Homer 46  Miss.  378 347 

V.   Morris 7  Paige,   39 200 

V.  Wright 30  Iowa,  480 78 

Hammond  v.  Earl 5  Abb.  N.  C.  105 170 

Hampshire  7'.  Franklin 16  Mass.  76 369 

Hanks  v.   Enloe 33  Tex.  624 20 

Hamley  v.  Clowes 2  Johns.  Ch.   122 11 

Hannan  v.  Osborn 4  Paige,   336 386 

Hanson  v.  Willard 12  Me.    146 189 

Harbinson  v.  Sanford 7  W.  R.   733 383 

Harcourt  v.   White 28  Beav.  303 451 

Hardy  v.  Summers 32  Am.  Dec.   167 472 

V.  Scanlin i  Miles,    87 407 

Hardin  v.  Osborne 60  111.  93 7^ 


TABLE    OF    CASES.  XXXI 

Page. 

Hardin  v.  Goovener 69  111.  140 79 

Harding  v.  Harding 4  Myl.  &   C.   514 427 

Harkins  v.   Pope 10  Ala.  499 323 

Harmon  v.  Keeley 14  Ohio,  502 105 

Harrington  i\  Long 2  Mylne  &  K.  590 86 

Harris  v.   Hardeman 55  U.  S.  (14  How.)  334 310 

Harris  v.  Jay 55  N.  Y.  421 296 

V.   Larkins 22  Hun,  4S8 24 

Harrison  v.  Harrison 56  Miss.  174 262 

V.  Harrison i  Md.  Ch.   332 422 

Harvey  v.   Griswold 2  Wall.  238 69 

Harwood  v.  Kirkby i  Paige,  469 266,  315 

Hasbruck  v.  Valentine 62  N.  Y.  475 13 

Haskins  v.  Spiller i  Dana,  170 3S5 

Hastings  v.  Stevens 9  Foster,  564 299 

Haughbaugh  v.  Honald 3  Beav.  98 466 

Hauk  V.  McComas 98  Ind.  460 469 

Hawkins  z'.    Hudson 45  Ala.   482 485 

Haywood  v.  Judson 4  Barb.   288 205,  212,  218  378 

Hazelton  v.  Wakeman 3  How.  Pr.   357 433 

Hazen  v.  Barnett 50  Mo.  507 466,  468 

Hedges  v.   Paulin 5  Biss.  177 77 

Heft  z/.   McGill 3  Pa.  St.  256 407 

Heirs  of  Bryant  v.  Stearns 16  Ala.  306 399 

Helbreigel  v.  Manning 97  N.  Y.  56 424 

Helenberg  v.  Bennett 88  Ind.  540 500 

Helm  V.  Franklin 5  Hump.  405 324 

Ilelphenstine  v.  Banks 60  Ind.  582 195 

Hemich  v.  High 2  Watts,  159 473 

Henderson  v.  Eason 9  E.  L.  &  Eq.  337 448 

Hendricks  v.  Comstock 12  Ind.  238 457 

Henry  v.  Auld 8  Va.  L.  J.  54 269,  323 

V.  McKerlie 78  Mo.  430 422 

Henshaw  v.  Wells 9  Humph.    568 241 

Herbert  7\   Smith 6  Lans.  493 29,  419 

Hercy  v.  Dinwoody 4  Brown  C.  C.  257 497 

Herr  v.  Ilerr 5   Penn.   St.   428 312 

Hewlett  V.  Wood 3  Hun,  736 127 

V.  Wood 62  N.  Y.  75 133,  144,  504 

z/.  Wood 55   N.   Y.  G34 145 


XXXU  TABLE    OF    CASES. 

Page. 

Hibbard  v.  Dayton 32  Hun,   220 197,  379 

Hicks  J/.  Watermire 7  How.   370 352 

Higgenbottom  v.  Short 25  Miss.  160 23 

Hill  V.  Dey 14  Wend.   204 231 

V.  Reno 54  Am.  R.  222 439 

Hincliman  v.  Stiles i  Stockt.  361,  454 299 

Hise  V.  Greiger 7  Watts  &  Serg.  273 217 

Hite  V.  Thompson 18  Mo.  461 317 

Hitchcock  V.  Skinner Hoffm.   Ch.    21 362,  375 

Hobart  v.  Hobart 58  Barb.  296 418 

Hodges  V.   Eddy 38  Vt.    327 88,  479 

Hodgkinson,   Petitioner 12  Pick.  374 44 

Hoffman  v.  Beard 22  Mich.  59 218 

V.   Rice 25   Mich.    176 192 

V.    Tredwell 6  Paige,  308 390 

Hoftailing  v.  Teal 11  How.  1S8 407 

Holbrook  v.   Finney 4  Mass.    56S , 2S0 

Holcomb  V.  Holcomb 2  Barb.  20 295 

Holden  v.  Sackett 12  Abb.   Pr.   473 296,  384,  416 

Holland  v.  Jackson i   Bridgeman,    77 444 

Holley  V.  Hawley 39  Vt.  531 456 

HoUingworth  v.  Sidebottom 8  Sim.  620 399 

Holman  v.  Randall 26  N.  Y.  Week.  Dig.   20 493 

Holmes  "'.  Holmes 2  Jones  Eq.  334 27 

Holt  V.  Robertson i  Mullen  Eq.    475 362 

Home  Building  &  Loan  Asso.  v.  Clark,  i  W.  R.  337 177 

Hooka  V.   Hooke 6  Lou.  474 316 

Hopkins  v.  Averett 6  How.  159 171 

V.  Medley 97  HI.  402 381 

Hornfager  v.  Hornfager 6  How.   Pr.  279 182 

Horsfall  v.  Ford 5  Bush,  644 316 

Horton  v.  Sledge 29  Ala.  498 193 

Hosford  V.   Mervin 5  Barb.  Ch.  51 217 

Houston  -'.  Bruner 39  Ind.  376 496 

Howard  v.  Easton 6  Johns.  205 55 

Howe  V.  Earl  of  Shrewsbury 9  Moak's  Eng.  R.  603 122 

V.  Howe 99  Mass.  98 396 

V.  Muir 4  How.  252 351 

Howell  V.  Mills 56  N.  Y.  226 129,  158 

V.  Mills 53  N.  Y.  322 430 


TABLE    OF    CASES.  XXxiil 

Page 
Howey  v.  Goings 13  111.  95 264 

Hoxhie  v.  Ellis 4  R.  I.  123 105 

Hoyt  V.  Hoyt i  New  Eng.  R.  638 177 

Huber  v.  Lockwood 15  How.  74 349 

Hudgins  v.  Kemp 20  How.  45 4^8 

Huff  7'.  IMcDonald 22  Geo.  164 4e;4 

Hugus  V.  Walker 12  Penn.  173 56 

Hughes  57.  Devlin 23  Gal,  509 176 

V.    Hughes 63  How.  408 35 

Hull  V.  Page 4  Pa.  428 II 

Humbert  v.  Trinity  Church 24  Wend.  587 70 

Hunnewell  v.   Taylor 3  Gray,  iii 218 

Hunt  V.  Chapman 62  N.  Y.  333 350 

V.  Ellison 32  Ala.  173 451 

V.    Hunt 72  N.  Y.  218 209,  384 

V.  Johnson 19  Wend.  297 475 

Hunter  v.  Hatton 4  Gill,   122 441,  499 

V.   Morse 49  Tex.  219 466 

Hunsucker  v.  Smith 49  Ind.  114 288 

Huston  V.  Mutual  Fire  Ins.  Co i  C.  R.  365 504 

Hyatt  V.  Pugsley 23   Barb.  285 155,  207 

V.  Wood 4  Johns.   150 12,  60. 

Hyde  v  Heath 75  111.  381 478 

I. 

In  re  Howarth 5  Moak's  Eng.  R.  633 I22' 

Null 2  F.  R.  71 303, 

Pettillo 80  N.  C.  50 426, 

Ireland  v.  Rittle i  Atk.   541 464,  468 

Irvene  v.  Adler 43  Gal.  559 8o> 

Irwin  V.  King 6  Ired.  219 27,  492 

Isreal  v.  Isreal 13  Md.  120 ,.  24Q. 

Ivory  V.  Delare 26  Miss.  505 497 

J- 

Jackson  v.   Adams 7  Wend.  367 481 

V.  Beach 2  C.  R.  261 440 

V.   Berner 48  111.  203 77 

V.   Brown 3  Johns.  459 310 


XXXIV  TABLE    OF    CASES. 

Page. 

Jackson  v.  Camp i  Cow.  605 482 

V.  Combs 7  Cow.  36 405 

V.  Davis 18  Johns.  7 485 

V.   Denn 5  Cow.  200, 82 

V.   Edwards 7  Paige,  387 

109,  121,  135,  260,  287,  420 

V.  Edwards 22  Wend.  512 121,  282,  298,  316 

V.  Ellis 13  Johns.  118 65 

V.   Elston 12  Johns.  452 73 

V.  Frost 5  Cow.  346 481 

V.  Graham 3  Cal.  188 485 

V.  Harder 4  Johns.   200 465,  475,  487 

V.   Ilazen 2  Johns.  22 483,  484 

V.  Hubble i  Cow.  613 484 

■V.    Huntington 5  Pet.  402 67 

V.   Ingraham 4  Johns.  163 51 

V.  Johnson 5  Cow.  74 67 

V.  Ketchum 8  Johns.  479 85 

V.   Eadeling 9911.8.513 262 

V.  Mancius 2  Wend.  357 476 

V.  Newton 18  Johns.  355 485 

V.  Pell 19  Johns.  270 356 

t/.  Porter i   Paine,  457 482 

V.  Richtmyer 13  Johns.  376 254 

V.  Rightmyre 16  Johns.  325 484 

V.  Rowen i  Cai.  358 444 

V.   Schoonmaker 4  Johns.  390 33,  66 

V.   Seelye. 16  Johns.  197 60 

V.  Sharp 9  Johns.  163 6g 

V.  Smith 13  Johns.   406 67,  68 

V.   Streeter 5  Cow.  529 449 

V.    Tibbits 9  Cow.  241 87 

V,  Thomas 16  Johns.    293 75,  482 

V.  Van  Denberg 2  Cai.  301 160 

V.  Vosburgh 9  Johns.  276 465 

V.  Vrooman 13  Johns.  488 247 

z/.  Walker 7    Cow.    637 485 

V.  Waters 12  Johns.  365 482 

V.  Wheat 18  Johns.  40 71 

V.  Wheeler 10  Johns.  166 72 


TABLE    OF    CASES.  XXXV 

Page. 
Jackman  v.  Ringland 4  Watts  &  S.  149 1S7 

James  v.  Rowan 6  S.  &  M.  393 279 

Jameson  v.  Perry 38  Iowa,  14 83 

Jaynes  v.  Jaynes 8  Civ.  Pro.  94 372 

Jenkins  v.  Dalton 27   Ind.   78 314,  454 

'^•Fahey 73  N.  Y.  355 35,  248 

V.  Van  Schaack 3  Paige,  242 24,  135,  154 

Jennings   v.  Jennings 2  Abb.  Pr.  6 I16,  320,  416 

Jessup  V.  Jessup 102  111.  4S0 381 

Job  V.  Potton L.   R.   20  Eq.  84 384 

Johnson   v.   Everitt 9  Paige,  636 2o3 

V.  Gorham 38  Ct.  513 77 

V.  Johnson 2  Hill  S.  C.  Ch.  277 10 

V,   Mcintosh 8  Wheat.  543 i 

V.   Olmstead 49  Ct.  517 258,  324,  325 

V.   Toolman 1 3  Ala.  50 87 

t/.  Wilson Willes.   248 464 

V.  Jones I  Black,  209 197 

Jones  V.   Davis 24  Wis.  229 483 

V.  Hughes 15  Abb.  N.  C.  141 397 

V.   Johnston iS  How.  U.  S.   150 197 

V.  Reeves 6  Rich.  132 477 

V   Robinson 27  Eng.  L.  &  Eq.  477 216 

Jordan,  Ex  parte 4  Otto,   24S 498 

Ex  parte 74  U.  S.  252 502 

V.  Fitz  Gerald 77  N.Y.  518 106 

V.  Poillon 77  N.Y.    518 336,  414,  424 

V.  Van  Epps 85  N.Y.  427 .198,   384,  392 

V.  Van  Epps 19  Hun,  526 292 

V.  Van  Epps 13  N.Y.  Week.  Dig 7,  209 

Josylin  v.  Josylin 9  Hun,  388 14 

Judson  V.   Blanchard 3  Ct.    579 407 


K. 

Kane  v.   Parker 4  Wis.  123 j86 

Kane  v.  Rock  River  Canal  Co 15  Wis.  186 312 

Kay  z/.  Whitegar 44  N.Y.    565 174 

Keay  v.  Goodwin 16  Mass.  i 477 

Keirle  v.  Schriver 11  Gill,  &.].   405 499 


XXXVl  TABLE    OF    CASES. 

Page. 

Kelsey  v.   Clay 4  Bibb,  441 490 

Kemp  V.  Cook :   18  Md.  130 123 

Kennedy  v.  Hunt 7  How.  U.  S.   586 197 

V.    Kennedy 43  Pa.  St.   417 468 

V.   Nedrow 2  Dall.   418 303 

Kenney  v.  Browne 3  Ridgw.  P.  C.  462 85 

Kepler  v.   Kepler 2  Carter,  363 380 

Ketchum   v.   Shaw 28  Ohio  St.  506 304 

Keyes  V.   Devlin 3  E.  D.  S.   518 129 

Kilgour  z/.   Gockley 83  111.   109 406 

Kimball  v.  Lamson 2  Vt.    138 123 

Kincaid  v.  Logue. 7  Mo.   167 55 

Kinchelow  v.   Tracewell 11  Grat.  605 69 

King  V.  Chase 16  N.  H.  9 209 

V.  Phelps I  Lans.  421 13 

V.  Piatt 37  N.Y.   80 440 

V.  Reed 11  Gray,  490 325 

Kingsland  z'.  Spalding 3  Barb.  Ch.    341 416 

Kinsman  v.  Parkhurst 18  How.  U.  S.  2S9 498 

Kisler  v.   Kisler 2  Watts,  323 1S7 

Kitchen  v.    Sheets i  Ind.  138 218 

Kline  v.   Bcebe 6  Ct.   494 398 

Knapp  V.   Burton 7  Civ.  Pro.  448 173 

V.  Brown 45  N.  Y.  207 372 

V.   Crosby I  Mass.  479 122 

V.  Hungerford 7  Hun,  588 25,  42,  135 

Koehler  v.  Ball 2  Kan.  160 422 

Kraushaar  v.  I\Ieyer 72  N.  Y.  602 351 

Kruse  v.  Wilson 79  111.    loi 78 

Kurtz  V.  Snead 42  Grat.  260 162 

L. 

Lacon  v.  Biiggs 3  Atk.  107 497 

V.  Davenport 16  Ct.  331 447 

Lacy  V.  Overton 2  A.  K.  Marsh.  442 464 

La  Frombois  7>.  Jackson .8  Cow.  489 76,  4S0,  482 

Lake  v.  Jarrett 12  Ind.  395 326 

Lake  Erie  &  W.  R.  R.  Co.  v.  Griffin. 92  Ind.  487 496 

Lamb  v.  Burbank i  Saw.   227 \ 58,  76 

f.  Swaine 3  Jones,  370 54 


TABLE    OF    CASES.  XXXvii 

Page. 
Lambert  v.  Blumenthal 26  Mo.  471 218 

Langwell  v.  Bentley 25  Pa.  St.  gg 31 

Lane  v.  Gould 10  Barb.  254 486 

V.  Schermerhorn i  Hill,  97 408 

Lansing  v.   Gulick 26  How.  250 113 

V.  McPherson 3  Johns.  Ch.   424 431 

■"•  Pine 4  Paige,  639 38,  93 

V.  Russell 2  N.Y.   563 iSl 

Larkin  v.  Mann 2  Paige,  27 134,  igg,  374 

Lasell  V.  Powell 7  Cold.  282 422 

Lansdon  v.  Elderton 14  Ves.  512 427 

Lauterman  v.  Williams 55  Cal.  600 467 

Laverty  v.  Moore 33  N.  Y.  658 ^     81 

Law  V.  Wilson 2  Root,  102 483 

Leach  v.  Beattie 33  Vt.  195 iqo 

Leary  v.  Boggs i   N.  Y.  S.  C.  R.  571 2a 

Leavitt  v.  Humphry 13   Pick.   382 303 

Lee  V.  Lindell 22  Miss,  i  Jones  202. 

2S5,  301,  305.  471 

Lefevre  v.  Laraway 22  Barb.    167 408,  431 

Leggett  V.  Rogers 9  Barb.  411 66 

Le  Roy  v.  Crowninshield 2  Mas.  C.  C.  151 457 

Lever  v.  Lever i  Hill  Ch.  67 61 

Lewis  V.  James 8  Humph.  537 299,  306 

Linkz/.  Doerfer 24  Am.  R.  417 482 

Lister  v.  Lister 3  Y.  &  C .  Ex.  540 232 

Litchfield  v.  Burnett 5  How.  Pr.  341 415 

Livingston  v.  Byrne 11  Johns.  566 432 

V.  Clarkson 4  Edw.  619 221 

V.  P.   Iron  Co 9  Wend.  516 66 

Lloyd  V.  Carter 5   Harris,  216 187 

V.  Conover i  Dutch.   47 501 

V.  Lloyd 16  N.  W.  R.  117 335 

Lobdell  V.  Stowell 51   N.  Y.  70 11 

V.  Stowell 37  How.  Pr.  88 490 

Logan  V.  Steele 7  T.  B.  Monr.  loi 82 

Long  V.  Doliarhide 24  Cal.  222 469 

V.  Mulford 17  Ohio  St.  484 317 

V.   Weller 29  Crat.  347 4:6 

Lord  z'.  Lord 68  Me.   568 ig2 


XXXVill  TABLE    OF    CASES. 

Page. 

Louvalle  v.  Minard i  Gilm.  39 '. 385 

Lowe  V.  Holmes i?  N.  J.  Eq.  148 105,  267 

V.  Miller 3  Grat.   205 11 

Lower  v.  Winters 7  Cow.  263 86 

Lucas  V.  Peters 45  Intl-  3i3 30 

Lucet  V.  Beekman 2  Cai.   385 156 

Lyie  V.  Smith 13  How.  Pr.  103 115,  182 

Lynch  v.  Baxter 4  Tex.  431 4^9 

V.  Rome  Gas  Light  Co 42  Barb.  591 4^3 


M. 

Machin  v.  Geortner 14  Wend.  239 53 

McALarz/.  Delanry 19  N.  Y.  Week.  Dig.  252 177 

M'AUister  7).  Reab 4  Wend.  483 504 

McAlpine  v.  Sweetser   76  Ind.  78 105 

McArthur  v.    Martin 23   Minn.  74 288 

McCabe  -/.  McCabe 18  Hun,  153 175,  384 

McCahill  v.  Eq.  Co 26  N.  J.  Eq.  531 296,  416 

McCall  z^.  Cannoran 21  Cal.  291 483 

McCamy  J/.  Higden 50  Ga.   609 78 

McClane  v.  Spence 11  Ala.  172 502 

McConnell  v.  Brown 5  Mon.  478 85 

V.   Huntington 5  W.  R.  S61 496 

V.  McConnell 64  N.  C.  342 78 

McCotter  -/.  Jay 30  N.  Y.  So 440 

McCrosker  v.  Brady i  Barb.  Ch.  329 46 

McCuIlough  V.  Allen 3  Yeates,  10 303 

McDonald  v.  McDonald 3  W^  Va.  676 407 

V.  Mallory 9  N.  Y.  Week.  Dig.  285 350 

V.  White II   H.   L.  Cas.  570 451 

McEncroe  v.  Decker 58  How.  250 170 

McFarland  v.  Hall 17  Tex.  676 497 

McGaughal  v.  Ryan 27  Barb.  376 411 

McGillivray  v.  Evans 27  Cal.  92 388 

McGowan  v.  McGowan 14  Gray,  119 187 

V.  Morrow 3  Code  R.  9 256,  343 

McGregor  v.  McGregor 35  N.  Y.  218 389 

McKay  v.  Mumf ord 10  Wend.  351 448 

McKennon  v.  Bliss 21  N.  Y.  206 486 


TABLE    OF    CASES.  XXxix 

rage. 
McKeon  v.  Keon 57  How.  Pr.  349 144 

McKillip  V.  McKillip S  Barb.  552 408 

McKim  V.  Thompson i   Bland  Ch.  150 41^9 

McKinsey  v.  Anderson 4  Dana,  62 2oq 

McLaughlin  v.  Circuit  Judge 23  N.  W.  R.  472 236 

McLear  v.  De  Laney 19  Week.  Dig.  252 10 

McLellan  v.  Miller 46  Ohio,  48S 81 

McLenathan  v.  McLenathan 2  Pen.  &  W.  279 337,  415 

McMahonz'.  McGraw 26  Miss.  614 483 

McMicken  v.  Perin 18  How.  U.  S.  507 498 

McMurray  v.  Erie   9  P.  F.  S.  225 504 

McPherson  v.  Foster 4  Wash.  C.  Ct.  45 442 

McWhorter  v.  Gibson 2  Wend.  443 345 

Madigan  v.  Walsh 22  Wis.  501 305 

Mfg.  &  M.  Co.  V.  Cady 96  111.  430 173 

Manly  v.    Pettee 3S  111.   128 337,  415,  466 

Mann  v.  Edson 39  Me.  25 299 

Manning  z/.   Laboree 33  Me.   343 299 

Manolt  V.  Brush 3  Law  Bull.  66 32 

Manton  v.  Hoyt 43  Md.   264 441 

Maple  V.   Kussart 53  Pa.  St.  348 3Si 

Markley  v.  Amos 2  Baily,  603 482 

Marsac,  Matter  of 15  How.  Pr.    3S5 113 

Marsh  v.  Weir 21  Tex.  97 4S1 

Marshall  v.  Crow 29  Ala.  278 27,  492 

V.  McLean 3  Iowa,   363 215 

Marie  v.  Garrison 83  N.  Y.  S3 79 

Martin  J'.   McCormick 3  Sandf.  755 351 

V.  Waddell 16  Pet.   367 3 

Marvin  v.  Marvin 52  Plow.  Pr.  97 435 

Massey  v.  Mclllwain 2  Hill  Ch.  424 468 

Masterson  v.  Finnigan 2  R.  I.   316 343 

Matthews  v.    Durj'ee 4  Keyes,  525 295 

v.  Matthews i  Edw.  Ch.  564 45,  96,  316 

Matthewson  v.  Johnson i  Iloffm.  Ch.  559 176 

V.  Pha'nix  Iron  Foundry.20  F.  R.  281 303 

Matney  z/.  Graham 59  Mo.    K/) 4S5 

Mattison  v.  Smith 19  Abb.  28S 170 

Maxwell  v.   Collins 8  Ind.  38 505 

May  V.  Adams 2  N.  Eng.  203 420 


xl  TABLE    OF    CASES. 

Page. 
May  V.   May II  Paige,    20l 431 

Mayburry  v.  Brien 15  Pet.  21 21,  279,  301 

Maynard  v.  Downer 13  Wend.  575 122 

V.  Maynard 4  Edw.  Ch.   711 228 

Mayor  v.  Coffin go  N.Y.  312 126,  159 

Mead  v.   Mitchell 17  N.Y.  210 108,  247,  340 

V.   Mitchell 5  Abb.  92 416 

Medford  v.   Harrell 3  Hawks,  41 208,  497 

Medlin  v.  Steele 75  N.  C.  154 464 

Medsker  v.  Parker 70  Ind.  509 287 

Meeker  v.  Wright 76  N.Y.   262 15 

Melvin  v.  Wadell 75  N.  C.   361 81 

Mellon  V.  Reed 6  C.  R.  413 478 

Merklein  v.  Trapnell 34  Pa.  42 219 

Merrells  z>.   Phelps 34  Ct.   109 406 

Merrithew  v.  Andrews 44  Barb.  200 61 

Merritt  z>.   Shaw 15  Grant  Ch.  323 317 

Merry  v.  Hallett 2  Cow.  497 248 

Micou  v.  Le  Mar 7  F.  R.  180 400 

Mildmay  z'.   Quicke 23  Moak's  Eng.  R.  156 347 

Miles  17.  Boyden 3  Pick.    213 407 

Millard  z-.   jMcMullan 68  N.Y.  345 83 

Miller  v.  Collyer 36  Barb.  251 426 

V.  Eastman 11  Ala.  6og 493 

V.  Long  Island  R.  R.  Co 71    N.Y.  380 486 

v.   McCloslvy I  Civ.  Pro.  252 170 

Milligan  v.  Poole 35  Ind.  64 260,  319 

Mills  V.  Martin 6  Johns.  33 310 

Mills  V.  VanVoorhees 20  N.Y.  412 295,  302 

V.  Watson 45  N.Y.  Sup.   591 351 

Miner  v.  Beekman 50  N.Y.  337 446 

Minot  V.  Brooks 16  N.  H.  376 485 

Mitchell  V.  U.  S 9  Pet.   710 51 

Moffatt  V.  McLoughlin 13  Hun,  449 161 

Monarque  v.  Monarque 19  Hun,  332 136,  146 

f.  Monarque 80  N.Y.    320 210 

Mooers  v.  White 6  Johns.  Ch.  368 497 

Moore  z'.  Brown 11  How.  U.  S.  414 481 

7K  Campbell 15  N.  H.  208 54 

V.  Harvey 50  Vt.  297 405 


TABLE   OF    CASES.  xli 

Page. 
Moore  v.  Kerr 46  Ind.  470 467 

Moran  v.  Signs 2  M.  &  \V.  95 487 

Morgan  v.  Dodge 44  N.  H.   255 254 

V.  Staley 12  Ohio,  389 31,  104 

V.   Stevens 6  N.   C.  356 349 

Morice  f.  Bishop  of  Durham 11  Vesey,   57 431 

Morris  v.  Hayes 2  Jones  N.  C.  93 55 

Morrill  v.  Morrill 5  N.  H.   134 232,  374 

Morrison  v.  Agate 9  N.  Y.  Week.  Dig.  286 352 

z'.  Kelly 22  111.  610 596 

Morris  v.   Harris 9  Gill,  26 470 

Morrow  v.  Westervelt 14  How.  Pr.  279 349 

Morss  V.  Salisbury 48  N.Y.  637 486 

Morse  v.  Morse 85  N.Y.   53 48 

Mosby  V.  Hunt 9  Heisk.  675 426 

Mosher  v.  Mosher 32  Me.  412 300,  471 

Moss  V.  Shear 25  Cal.  38 482 

Motley  V.  Blake 12  Mass.  280. 1S8,  290,  304 

Mount  V.  Morton 20  Barb.   138 466,  476 

Mowe  V.  Stevens 61  Me.  292 80 

Mowsez/.  Weaver Moore,  655 85 

Muller  z/.    Struppman 55  How.  Pr.  521 39,  128 

Mumfordt'.  McKay 8  Wend.  442 II 

Munro  v.  Merchant 28  N.  Y.  9 71,  485 

Munroe  v.  Luke 19  Pick.  39 263 

Munson  v.  Payne 9  Heisk.  672 426 

Murphy  v.  People 4  Hun,  104 486 

V.  Spaulding 46  N.  Y.  556 372 

Murray  v.  Fitzsimmons 2  Johns.  4S2 157 

Mussleburg  v.  Duncan 9  Bing.  605 348 

Mussey  z'.  Sandborn 15  Mass.  155 26,  152,  188 

Myers  t'.  Rasbeck 2  Code  R.  13 168 


N. 

Nash  V.  Church 10  Wis.  311 312 

Nash  V.  Simpson i  N.  E.  R.  699 35,  189 

Neeson  v.  Clarkson 4  Hares,  97 378 

Nesmith  v.   Dinsmore 17  N.  H.  515 380 

New  Albany  v.  Burke 11  Wall.  96 451 


xlii  TABLE    OF    CASES. 

Page. 

Newcombz'.  Newcomb 12  N.  Y.  603 40 

Newell  z/.  Hulburt 2  Vt.  351 37© 

Newhall  v.  Sadler 16  Mass.  122 130 

Newman  t/.  Cincinnati 18  Ohio,  323 483 

New  Orleans  Nat.  Bank  v.  Adams. .  .3  Woods  U.  S.  21 502 

Nichols  z/.  Nichols 28  Vt.  228 3i,  44 

Niles  V.  Carver i?  How.  U.  S.  591 503 

Noble  V.  Cromwell 3  Abb.  Ct.  App.  Dec.  382. 

155,  159.  183 

V.  Cromwell 6  Abb.  Pr.  59 163,  270 

V.  Cromwell 26  Barb.  475 159.  3?9.  4i8 

z/.  Noble 51  111-  226 26 

Nodine  v.  Greenfield 7  Paige,  544 346 

Nolan  z/.  Skelly 62  How.  Pr.  902 174 

Northcot  V.  Casper 6  Ired.  306 454 

Northrop  v.  Anderson 3  How.  351 214 

V.  Wright -24  Wend.  221 72 

Norton  v.  Bradham 21  S.  C.   375 3G6 

Nunenz  v.  U.  S Hoff.  Land  Cas.  100 59 

o. 

Cakes  v.  Oakes 16  III.  ro6 405 

Obert  z/.  Hammel '. 3  Har.   73 334 

V.  Obert 12  N.  J.  Eq.  423 218 

O'Connor  v.  Carver ." 12  Heisk.  [Tenn.]  436 121 

Odellz/.  Odell 19  ^'-  Y.  Week.  Dig.  13 198 

O'Donnell  v.  Lindsay 39  N.  Y.  Sup.  523 333 

V.  Kelsey..  ,...  ,,.. ^^ -^"i,  V.  412 225 

O'Doughert/  v.  Aldrich 5  Den.  385 148 

Offinger  v.  De  Wolf 43  N.  Y.  Sup.  144 207 

Oldershaw  v.  Carver C.  B.  Q.  37 59 

Oliott  V.  Robinson 21  N.  Y.  150 333 

O'Rielly  v.  King 28  How.   Pr.  408 416 

Ormand  v.  Martin 37  Ab.  606 193 

Orton  V.  Hunter 18  W.  Va.  83 45-, 

Osborn  v.  Betts 8  How.  Pr.  31 351 

Otisz^.  Cusack 43  Barb.   ^549 466,  474 

V.  Ross 8  How.  Pr.  193 171 

Ottz/.  Schroeppel 3  Barb.  56 348 


TABLE    OF    CASES.  xliii 

Page 
Outran  v.  Morewood 3  East,  351 200 

Oviatt  V.  Sage 7  Ct.  95 447 

Owsley  z/.  Smith 14  Mo.   155 322 


P. 

Packard  v.  King 3  Col.  211 192 

Paddock  v.   Shields 57  Miss.  340 261 

Page  V.  O'Brien 36  Cal.  559 483 

V.  Webster 8  Mich.  263 104,  148 

Paine  v.  Ward 4  Pick.  246 342 

Palmer  v.  Malone i  Heisk.  549 451 

Pankey  v.  Howard 47  Miss.  87 325 

V.  Raum 51  111.  88 1^3 

Parisen  v.   Parisen 46  How.  Pr.  385 416 

Parker  v.  Gregory 4  N.  &  M.  308 ^6 

V.  Wright 62  Ind.  398 105 

z/.  Staniland 11  East,  362 86 

Parkinson  v.  Caplinger 65  Mo.  290 335 

l^arsons  v.  Eoyd 20  Ala.  112 iq 

V.  Brown 15  Barb.  590 486 

Patapsco  Guano  Co.  v.  Elder 53  Md.  463 ^qq 

Patterson  v.   Lanning 36  Am.  Dec.  154 4^0 

V.  McCunn 17  N.  Y.  Week.  Dig.  186 96 

V.  McCunn 46  How.   Pr.  1S2 1S5 

Payne  v.  Becker 87  N.  Y.  153 ,5 


V.  Becker 22  Hun,  28. 


38 

Peabody  v.  Minot 24  Pick.  333 132 

Peaceable  v.  Reed i  East,  568 20 

Peaks  V.  Gifford 2  N.  Eng.   R.  S78 254 

Pearce  v.  Pearce 9  Ves.  547 40^ 

Pearl  v.   McDonald 3  J-  J-  Marsh.  658 3g6 

Pearl  St.,  Matter  of 19  Wend.  651 221 

Peck  V.  New  York  &  New  Jersey  R. 

R.  Co 85  N.  Y.  246 433 

Pegram  v.  Williams 4  Rich.  219 457 

Pell  V.  Ball I  Rich.  Eq.  361 195,  3S8 

Pendergrass  v.  York  M'f'g  Co 76  Me.  512 255 

Pentz  V.  Kuester 41  Mo.  447 33 , 

People  V.  Folsom 5  Cal.  373 2 


Xliv  TABLE    OF    CASES. 

Page. 
People  z/.  N.  Y.  C.  R.  R.  Co 29  N.  Y.  418 352 

z/.  Norton i  Paige,   17 237 

V.  Stock  Broker  Building  Co.  .92  N.  Y.  98 42I 

V.  Trinity  Church 22  N.  Y,  44 446 

V.  Van  Rensselear 9  N.  Y.  319 412 

V.  Van  Rensselear 8  Barb.  189 446 

Pepper  v.  O'Dowd 39  Wis.   538 77,  483 

Perkins  v.  Fouriquet 6  How.  U.  S.  206 506 

Permenter  v.   Kelly 18  Ala.  716 11 

Perry  v.   Borton 25  Ind.  274 288 

Perry  v.  McHenry 13  111.   227 1S7 

Phelan  z/.   Kelly 25  Wend.  386 447 

Phelps  V.  Green 3  Johns.  Ch.  302. 

137,  207,  212,  256.  346 

Phillips  V.  Dawley i  Neb.  320 422 

Piatt  V.   Ilubbell 5  Ohio,  243 466 

Picot  V.  Page 26  Mo.  422 470 

Pierce  v.  Morrill 26  Cal.  353 3 

V.  Oliver 13  Mass.  211 129 

V.  Schenck 3  Hill,  28 4S9 

Pigg  V.   Carroll 89  111.   207 192 

Pignolet  V.  Bushe 28  How.  Pr.  9 238 

Pike  V.  Evans 94  U.  S.   6 79 

Piles  V.   Bouldin 1 1  Wheat.    325 59 

Pillsbury  v.  Dugan 9  Ohio,  120 286 

Pipes  V.   Buckner 51  Miss.  S48 466 

Pipkin  V.  Allen 29  Mo.  229 208,  497 

Planter's  Bank  v.  Sharpe 4  Smedes  &  Marsh.  75 369 

Piatt  "'.  Hubbell 5  Ohio,  243 477 

Piatt  V.  riatt 66  N.Y.  360 239 

V.  Piatt 42  Hun,  592 380 

Pond  V.  Pond 13  Mass.  413 130 

Poorman  v.  Kilgore i  Wright,    309 187 

Pope  V.  Henry 24  Vt.  560 468 

V.  Mead 99  N.Y.   202 305 

Porter  v.  Hill 6  Mass.  34 464,  477 

V.  Lopes 23  Moak's  Eng.  R.  631 240,  263 

V.    Perkins 5  Mass.   233 474,  477 

V.  Robinson 3  A.  K.  Marsh.  253 407 

Portis  V.   Hill 14  Tex.  69 190 


TABLE    OF    CASES.  xlv 

Page. 

Tostv.  Hover 33  N.Y.   593 148 

V.   Post 65  Barb.  192 224,  232,  259,  2S7 

Postly  V.  Kain 4  Sandf.  Ch.  542 lOO,  360 

Potter  V.    Wheeler 13  Mass.  504 27,  2S2,  471 

Powell  V.  Knowler 2  Atk.  224 85 

Powell  V.  Powell 5  Bush  Ky.  619 19 

Power  V.  Power 7  Vv'^atts,  205 105 

Pray  v.  Stebbins i  N.  E.  R.  521 22 

Prentice  v.  Janssen 7  Hun,  86 132,  491 

Prescott  V.  Janssen 9  N.Y.  Week.  Dig.  466 260 

P z'.  Nevers 4  Mason,  326 10,  485 

Pringle  v.  Sturgeon Litt.  Sel.  Cas.  112 474 

Public  Works,  Matter  of 73  N.Y.   560 82 

Putnam  v.  Ritche 6  Paige,   398 24 

Q. 

Quarles  v.   Kerr r4  Grat.  48 502 

Quigley  z:  Roberts 44  HI-  503 4°? 

Quinn  v.   Quinn 27  Wis.  16S 483 

R. 

Rabb  V.  Aiken 2  McCord  Ch.  125 250 

Randall  v.  Krieger 2  Dill.  445 306 

Randies  v.  Randies 67  Ind.  434 497 

Rank  v.    Hanna 6  Ind.   20 283,  471 

Rannells  v.  Gerner 80  Mo.  474 39^ 

Ransom  v.   Henderson i  W.  R.  636 173 

Rasspass  v.   Breckinridge 2  A.  K.  Marsh,  581 385 

Rawley  v.  Brown 71  N.Y.   85 f)2 

Rawson  v.  Fox 65  111.  200 79 

Ray  V.   Loper 65  Mo.  472 194 

Reed  v.  Fidelity  Insurance,  Trust  and 

Safe  Deposit  Co 4  C.  R.  763 219 

V.   Rankin 2  W.  R.   879 3^8 

Regan  7'.  McMahon 43  f  al-  627 497 

Reid  7J.  Clardner 65  N.Y.   578 208 

z'.  Kennedy 2  Strobh.  67 21 

Remington  t'.  Cady 10  Ct.  44 21 

Requaz/.  Holmes 16  N.Y.  193 393 


xlvi  TABLE    OE    CASES. 

Page. 

Redman  v.  Sanders 2  Dana,  68 84 

V.  Rea 2  Paige,   339 427 

Reynolds  v.  Morris 17  Ohio  St.  510 187 

V.  Reynolds 24  Wend.  193 301 

V.  Reynolds 5  Paige,  161 394 

Rhodes  v.  Delaney 50  Ind.  468 194 

V.  Smethurst 4  M.  &  W.  42 457 

Rice  V.  Barrett 3  Cent.  R.  440 421 

V.  Floyd I  Code  R.  112 495 

V.  Smith 14  Mass.  431 131 

Ricard  v.  Williams 7  Wheat.  59 57,  444,  450,  482 

Rich  V.  Lord 18  Pick.  327 191 

Richard  v.  Richard 76  N.  Y.    186 331 

V.   Richard 13  Pick.  251 43 

V.  Talbird i  Rice  Eq.  158 303 

Richards  v.  Richards 17  Ind.  636 317 

Richardson  v.  Draper 87  N.  Y.   387 389 

V.  Merrill 21   Me.  47 31,  219 

Rider  v.  Mane 46  Pa.   St.  376 76 

Ridgeway  v.  Holliday 59  Mo.  444 76 

Rigor  V.  Frye 62  111.  507 78 

Riker  v.  Darke 4  Edw.  Ch.  668 28,  31,  98 

Rinehart  v.  Vail i  W.  R.  542 500 

Ripple  V.  Gilborn 8  How.   Pr.  456 31,  104,  199 

Rivers  v.  Thompson 43  Ala.  633 78 

Robertson  v.  Miller 2  Green  Ch 451 

Robinson  v.  McGregor 16  Barb.  531 319 

Rockwell  V.  Decker 5  Civ.  Pro.  R.  62 298,  363 

Roe  V.  Angevine 7  Hun,  679 123 

Rogers  v.  Biackwell 49  Mich.  192 3g7 

V.  Brown 61   Mo.  187 451 

V.  Dill 6Hill,4i5 39 

V.  McLean 34  N.  Y.  536.  .114,  iig,  120,  135,  183 

V.  McLean 10  Abb.  306 416 

V.  Tucker 7  Ohio^St.  428 311 

V.   Turley 4  Bibb,  356 470 

Roof  V.  Stafford 7  Cow.  180 3g8 

Roseboom  v.  Roseboom 15  Hun    309 i^ 

Roskrans  v.  Roskrans 7  Laos.  486 108 

V,  White 7  Lans.  468 105 


TABLE    OF    CASES.  xlvii 

Ross  V.  Armstrong 25  Tex.  372 ^^^ 

V.  Ramsey 3  Head,  16 313,  333 

Rossiter  T'.  Cossit 15  N.  H.  38 300 

Roston  V.  Morris 25  N.  J.  L.  173 „ 

Rountree  v.  Denson 29  Wis.  522 469,  470 

Rout  V.  King i  West.  R.  593 426 

Row  V.  Roe 4  How.  Pr.  133 , 222 

Rowan  v.  Reed 19  111.  28 ^82 

Rowe  V.  Gray 22  Moak's  Eng.  R.  70 262 

Royston  v.  Royston 13  Ga.  425 195^  383 

V.  Royston 21  Ga.  172 285 

Rudderrow  v.  Dudley 5  Cent.  R.  802 334 

Ruggles  V.  Washington  Co 3  Miss.  495 369 

Russell  V.  Mandell 73  111.  136 nq 

Rust  V.  Hanset 2  Law  Bull.  6 353 

Ryegate  v.  Wardsboro 30  Vt.  746 505 

Ryerss  v.  Wheeler 25  Wend.  434 466.  475 


S. 

Safford  v.  Safford 7  Paige,  259 184 

St.  P'elix  V.  Rankin 3  Edw.  Ch.  323 378 

Samson  v.  Alexander 67  Me.  523 160 

Sandford  v.  Ballard 33  Beav.  401 242 

^-  White 56  N.  Y.  359 no,  119 

Sands  v.  Davis 40  Mich.  40 262 

V.   Hughes 53  N.  Y.  287 65,  83 

Sargent  v.  Parson. 12  Mass.  149 448 

Savage  v.  Williams 15  La.  Ann.  250 27,  317,  492 

Sawyer  v.  Newland g  Vt.  3B3 54 

Saxton  V.  Hunt Spencer,  487 486 

Schermerhorn  v.  Hays 42  Am.  Dec.  275 472 

Schwienger  tk  Hickok 53  N.  Y.  284 119 

Schwinger  v.  Hicks r  Sheldon,  377 349 

Scofield  V.  Churchill 72  N.  Y.  565 4(36 

Scott  V.  Elmore 10  Hun,  168 42 

V.  Guernsey 48  N.  Y.  106.  .  105,  160,  193,  324,  385 

V.  Guernsey 60  Barb.  178 190,  191,  380 

V.  Howard 3  Barb.  319 278,  303 

V.   Stebbins 27  llun,  335 100 


xlviii  TABLE    OF    CASES. 

Page. 

Scovil  V.  Kennedy 14  Ct.  349 27 

Sears  v.  Hyer I  Paige,  483 319,  359 

V.  Sears 121   Mass.  267 i8g 

Searle  v.  Galbraith 73  111.  269 384 

Seaton  v.  Barry 4  Watts  &  Serg.  183 387 

V.  Son 32  Cal.  481 87 

Sebring  v.  Mersereau 9  Cow.  344 96,  268 

Seeley  v.  Pritchard 3  Duer,  669 495 

V.  Reid 3  Iowa,  374 194 

Serran  v.  U.  S 5  Wall.  451 59 

Seward  v.  Clark 67  Ind.  289 500 

Seymour  v.  De  Laney Hopk.  Ch.  436 446 

Shannon  v.  Pickell 2  N.  Y.  S.  R.  160 507 

Sharp  V.  Pell ro  Johns.  4S6 117 

Shattuck  V.  Gay 45  Vt.  87 420 

Shaw  V.  Lawrence 14  How.  94 117 

Shearer  v.  W^inston 33  Miss.  149 218 

Shelly  z/.  Shelly 8  Watts  &  Serg.  153 388 

Shepard  v.  Rinks 78  111.  188 467 

V.  Rice 38  Mich.  556 497 

Sherman  v.  Kane 86  N.  Y.  57 444 

Sherry  v.  Frecking 4  Duer,  452 444 

Sherwood  v.  Sutton 5  Mas.  C.  C.  146 451 

Shriver  v.  Shriver 86  N.  Y.  575 423,  446 

Shulse  V.  McWilliams i  W.  R.  492 177 

Shultz  V.  Arnot 33  Mo.  172 483 

V.  Whitney 9  Abb.  Pr.  71 354 

Shumway  v.  Holbrook i   Pick.  114 24 

V.  Phillips 22  Pa.  St.  151 483 

Sibley  v.  Holden 10  Pick.  249 474 

V.  Smith 2  Mich.  486 505 

Siglar  V.  Van  Riper 10  W^end.  414 72 

Simar  v.  Canaday 53  N.Y.    298 295 

Simmons  v.  Lane 25  Ga.  178 481 

Simonds  v.  Powers 28  Vt.  354 505 

Simotan  v.  Gray 34  Me.    50 299 

Sims  V.  Sims 2  Ala.   118 194 

Singer  v.  Scheible 8  W.  R.  404 423 

Si'.k  V.  Smith 6  111.  507 304 

Slater  v.  Rawson 6  Mete.  439 455 


TABLE    OF    CASES.  xHx 

Page. 
Slaughter  v.  Fowler 44  Cal.   195 83 

Slice  V.  Denrick 2   Rich.  629 466,  477 

Slingluff  V.   Stanley 5  Cent.  R.  609 441,  498 

Sloan  V.  Grah.im ..S5  111.   27 451 

Small  V.  Robinson 9  Hun,  418 10 

Smith  V.  Barber 7  Ham.  118 215 

V.   Brady 17  N.Y.   173 476 

V.   Burtis 6  Johns.  216 455 

V.   Burtis 9  Johns.  174 64,  67 

V.  Commissioner  of  Taxes i  C.  R.  289 408 

"v-  Dunn 27  Ala.  315 27,  492 

V.  Jackson 2  Edw.  Ch.   28 302 

V.   Lewis 20  Wis.  350 483 

V.  Lorillard 10  Johns.    338 75,  484 

V.  Lyster 4  Beav.  227 242 

V.   Montes 11  Tex.  94 444 

V.  Paris 70  Mo.  615 343 

V.  Sharper Busb.  N.  C.  L.  91 10 

V.   Sholtz 68  N.Y.  41 37_  03 

V.  Smith ID  Paige,  470. 

27,  95,  196.  213,  259,   326,   374 

"v.   Smith 5  Alb.  L.  J.  124 302 

V.  Smith 4  Rand.   95 4^0 

V.  Wells 69  N.  Y.  600 424 

Smyth  V.  Bradstreet 5  Cow.   213 2^4 

Sneed  v.  Osborn 25  Cal.   619 444 

Snively  v.  Luce i  Watts,  69 4^7 

Society,  etc.  71.  Town  of  Paw  let 4  Pet.  480 69,  482 

Sparhawk  v.   Bullard i  Mete.  95 226 

Spaulding  v.   Baldwin 31  Ind.  376 384 

Speer  7'.  Speer McCartner  Ch.  251 267 

Spencer  v.  Austin 38  Vt.  258 ee 

V.    McConagle 8  N.  E.  R.   266 164,  290 

Spooner  v.   Davis .  .7  Pick.    14 209 

Spring  V.  Sandford 7  Paige,  550 loi,  272 

Sprott  V.  Ried 3  Iowa,  489 355 

Sprowl  V.  Lawrence 33  AJa.  674 505 

Stacy  z/.  Vt.  C.  R.  R.  Co 32  Vt.  551 405 

Stanley  v.  Jones 7  Bmgh.  369 85 

Staples  V.  Maurice 17  Bro.  P.  C.  49 280 

D 


1  TABLE    OF    CASES.- 

Page. 

State  V.  Nicholls 30  La.  Ann.  980 505 

V.  Pepper. 7  Miss.  348 499 

Stedman  v.  Fortune 5  Ct.  462 281 

V.  Weeks 2  Strobh.  Eq.   145 27 

Steed  V.  Preece 18  L.  R.  Eq.  192 363 

Steen  v.  Clayton 32  N.  J.  Eq.   121 323 

Stelle  V.  Carroll 12  Pet.  201 302 

Stephen  v.  Magruder 31  Md.   168 426 

Stern  v.  Epstin 14  Rich.  Eq.  7 323 

V.  Hendersass 9  Cush.  497 444 

Stevens  T'.  Bagwell 15  Ves.  139 85 

V.  Brooks 24  Wis.  326 78 

Steward  v.  Munroe 56  How.  Pr.  193 143,   155 

Steward  Heirs  v.  Colter 4  Rand.  74 192 

Stillwell  V.  Watkins. i  Jacob,  280 238 

Stinde  v.  Ridgway 55  How.  Pr.  309 147 

Stinson  z'.   Rouse 52  Me.   261 255 

Story  V.  Johnson :   i  Y.  &  C.  Ex.  546 230 

Stout  V.   McPheeters 84  Ind.  585 426 

Stoval  V.  Ban'<s 10  Wall.  583 497 

Sto wer  V.  Whitman 6  Binney,  420 84 

Stratton,  Matter  of, i  Johns.   509 114,  116 

Strauss  v.   Hellman 58  How.  Pr.  377 331 

Street  v.  Anderton 4  Bro.  414 241 

Strickland  t'.   Parker 54  Me.    263 il 

Striker  7/.   Mott 2  Paige,  3S7 38,  93.  108 

Stroble  v.  Smith 8  Watts,  280 381 

Struppman  v.  Muller 52  How.  Pr.  211 45,  114 

Stryker  v.  Storm i  Abb.  424 441 

Stuart  V.  Baker 17  Tex.  420 466 

Sturton  V.  Richardson 13  M.  &  W.  17 448 

Sullivan  v.  Sullivan 66  N.  Y.  37 8,  24,  43,  92 

V.  Sullivan 4  Hun,  198 90 

Summer  v.  Parker 7  Mass.  79 162,  286 

Swain  V.  Morberly 17  Ind.  99 426 

Swett  V.  Bussey 12  Mass.  503 354 

Swift  V.  Gaige 26  Vt.  224 55 

V.   Luce 27  Me.  285 505 

V.  Roberts Amb.  617 279 

Swindell  v.  Richey 41  Lid.  281 426 


TABLE    OF    CASES.  H 

Page. 
Syle  V.  Llewellin i  Eland  Ch.  iS 499 

Symonds  v.  Kimbcll 3  LIcss.  299 354 


T. 

Tabor  v.  Cilley 53  Vt.  487 420 

Taggart  v.  Hurlburt 66  Barb.  553 438 

Tanner  v.  Niles I  Barb.  560 256,  2S6,  343,  355 

Tarleton  v.  Goldthwaite 23  Ala.  358 454 

Taylor  v.  Blake 109  Mass.  514 i8g,  290 

V.  Bradley 39  N.  Y.  129 13 

V.  Rowland 26  Tex.  293 407 

Teackle  v.  Gibson 8  Md.  70 • 451 

Teal  V.  Woodworth 3  Paige,  470 94 

Terriil  v.  Boulvvare 24  Miss.  254 215 

Terwilliger  v.  Brown 44  N.  Y.  237 333 

Tewksbury  v.  Provizzo 12  Cal.  23 462 

Thayer  v.  Lane Walker  Ch.  200 95,  135 

Thistle  V.  Frostburg  Coal  Co 10  Md.  129 4S6 

V.  Thistle 66  How.  Pr.  472 117 

Thomas  v.  Hatch 3  Sum.  170 24 

V.  Lynch 33  Ct.  330 456 

V.  Pickering 102  Me.  337 87 

V.  Thomas 5  Exch.   28 447 

Thompson  v.  Dean 7  Wall.  342 497 

V.  Hardman 6  Johns.  Ch.  436 326 

V.  Wheeler 15  Wend.  340 159 

Thornton  v.  Fairfax 29  Grat.  669 426 

7).  York  Bank 45  Me.  158 354 

Thorp  V.  Hanes 5  W^est.  R.  845 165 

Thurber  v.  Chambers 4  Hun,  721 181 

V.  Chambers 60  N.  Y.  291 507 

Thurston  v.  Minke 32  Md.  574 388 

Thwing  V.  Thwing 18  How.  Pr.  458 266,  322,  324 

Tibbitts  V.  Tibbitts 7  Paige,  204 257,  355 

Tilton  V.  Emery 17  N.  H.  536 444 

Timon  v.  Moran 54  N.  H.  441 381 

Tinney  v.  Stebbins 28  Barb.  290 133,  490 

Tomlin  ta  liilyard 43  111.  300 466,  468 

Tomlinson  v.  McKaig 5  Gill,  256 498 


lii  TABLE    OF    CASES. 

Page_ 

Tongue  v.  Martin 6  Har.  &  Johns.  21 61 

Tonnele  v.  Hall 4  N.  Y.  140 505 

Toomer  v.  Toomer i  Smith,  93 121 

Totten  V.  Stuyvesant 3  Edw.  Ch.  500 c-Cj,  307,  471 

Tousey  v.  Harrison 25  How.   Pr.  266 115 

Town  V.  Needham 3  Paige,  545 377 

Townsend  v.  Downer 32  Vt.  183 473 

Tracy  v.  Reed 4  Blackf .  66 209 

Traip  v.  Traip 57  Me.  268 444 

Traver  v.  Nichols 7  Wend.  434 495 

Treadway  v.  Wilder 12  Nev.  108 452 

Tripp  V.  Riley 15  Barb.  333 489 

Trull  V.  Granger 8  N.  Y.  115 62 

V.  Rice 85  N.  C.  327 324 

Trustees  v.  Greenough 105  U.  S.  527 500 

V.  Kirk 68  N.  Y.  459 81 

Trust  V.  Delaplaine 3  E.  D.  Smith,  219 330 

Tucker  v.  Moreland 10  Pet.  58 398 

V.  Tucker 19  Wend.  226 259,  321 

V.  Parker 70  Ga.  414 324 

TuUoch  V.  Worrell 49  Pa.  133 57 

Turner  v.  Morgan 8  Ves.  143 323,  375 

V.  Waldo 40  Vt.  51 II 

Twing  V.  Twing 18  How.  Pr.  458 391 

Tyler  v.  Hudson 46  Barb.  464 65 

Tyman  v.  Walker 35  Cal.  634 505 

U. 

Underbill  v.  Jackson i  Barb.  Ch.  73 234 

Union  Ins.  Co.  v.  Van  Rensselaer. .  .4  Paige,  85 346  ' 

Union  Trust  Co.  v.  Whiton 17  Hun,  593 350 

United  States  v.  Bowen 100  U.  S.  508 505 

V.  White 2  Hill,  59 446 

V. 

Valentine  v.  Belden 20  Hun,  537 332 

z;.  McCue 26  Hun,  456 331 

Van  Arsdale  z/   Drake 2  Barb.  599 28 

Vanderveer  v.  Alston 16  Ala.  494 27,  493 


TABLE    OF    CASES.  llii 

Page. 
Van  Derwerker  v.  Van  Derwerker. . .  .7  Barb.  221 32,  104 

Vanderzee  v.  Slingerland 19  N.  Y.  Week.  Dig.  107 10 

Van  Deusen  v.  Sweet 51  N.  Y.  384 397 

Van  Epps  v.  Van  Epps 9  Paige,  237 421 

Van  Orman  v.  Phelps 9  Barb.  500 14 

Van  Rensselaer  v.  Kidd 5  How.  Pr.  242 351 

Van  Reynegan  v.  Bolton. 95  U.  S.  33 59 

Van  Schuyler  v.  Mulford 59  N.  Y.  426 137,  148,  172 

Van  Tassel  v.  Van  Tassel 31  Barb.  439 330 

Van  Wyck  v.  Hardy 11  Abb.  Pr.  473 115,  184 

V.  Hardy 4  Abb.  Ct.  App.  Dec.  496 438 

Varian  v.  Stevens 2  Duer,  635 115,  184,  416 

Veazie  v.  Williams 8  How.  U.  S.  134 330 

Venable  v.  Beauchamp 28  Am.  Dec.  74 470 

Verplanck  v.  Verplanck 22  Hun,   104 239 

Verry  v.  Robinson 25  Ind.  ig 286 

Vincent  v.  Parker 7  Paige,   65 238 

Voessing  v.  Voessing 12  Hun,  678 142 

Vogel  V.  Brown 8  W.  R.  645 500 

\ oorhees  v.  Bankof  U.  S 10  Pet.  449 442 


W. 

Wadham  v.   Gray 73  III.  422 296 

Wadsworth  v.  Buffalo  Hydraulic  As- 
sociation  15  Barb.  94 412 

Waddington  v.  Bristow 2  Bos.  &  P.  452 86 

Wagstaff  V.   Smith 2  Dev.  264 454 

Wainman  v.  Hampton 20  N.  Y.  Week.  Dig.  68 176 

Wainwright  v.  Dorr 13  Pick.  333 130 

V.  Rowland 25  Mo.  53 327 

Wait  V.  Maxwell 5  Pick,  217 396 

Walbridge  v.  James 16  Hun,  8 331 

Walker  v.  Hall 15  Ohio,  355 253,  437 

V.  Heller 1  W^.  R.  595 501 

V.  Walker 3  Abb.  N.  C.  12. 

45,  216,  225,  259,  375 

Wall  V.  Shendler 47  Mo.  282 74 

Wallace  v.  Fecley 61  How.  Pr.   225 331 

V.  Wallace 6  W.  R.  113 191,  388 


liv  TABLE   OF   CASES. 

Page. 

"Walling  V.  Wheeler 39  Tex.  480 457 

Wallis  V.  Duke  of  Portland 3  Ves.  494 85 

Waltz  V.  Barraway 25  Ind.  381 311 

Ward  V.  Gardner 112  Mass.  42 188,  290,  304 

V.  Ward 23  Hun,  431 146 

Ware  v.  Washington 6  Smedes  &  M.  737 301 

Warfield  v.  Crane .4  Keyes,  448 .30,  386 

V.  Crane 4  Abb.  Ct.  App.  525.  ..212,  3%,  438 

V.  Dorsey 39  Md.  304 426 

Waring  v,  Wadsworth 80  N.  C.  345 '92 

V.  Waring 3  Abb.  Pr.  246 log,  266 

V.  Waring 7  Abb.  Pr.  472 162,  184,  393 

Warren  v.  Baynes 2  Blunt  Amb.  589 232,  374 

Wash  V.  McBrayer i  Dana,  566 84 

Wass  V.  Bucknam 38  Me.   356 217 

Waters  z;.  Shepherd 14  Hun    223 348 

Watson  V.  Brigham 3  How.  Pr.  290 igg 

Watson  V.  Gass 51  L.  J.  Ch.  Div.  480 379 

V.  Kelty I  Harr.  517 440 

V.  Scriven 7  How.  9 11,  182 

V.  Spratley 10  Exch.  222 55 

Weaver  v.  Barden 49  N. Y.  286 168 

V.  Gregg 6  Ohio  St.   547 305 

Webber  z/.  Mallett 4  Shep.  88 263 

Webster  v.  Van  venter 6  Gray,  428 19 

Weed  V.  Paine 31  Hun,  10 346 

V.  Paine 4  Civ.  Pro,  305 257 

Weeks  v.  Tomes 16  Hun,  349 424 

Welsh  V.  Lovis 31  111.  446 55 

Wellesley  v.  Wellesley 2  Bligh  N.  S.   124 399 

Wells  V.   Middleton I  Cox,  125 86 

Wells  V.  Jackson 40  N.  H.  491 77 

Wetherill  v.  Micke Brightley,  140 472 

Wendley  v.   Barrow 2  Jones  Eq.  66 258 

West  V.  Davis 4  McLean,  241 442 

Westervelt  v.   Haff 2  Sandf.  Ch.   107 323 

Weston  z/.  Charleston 2  Pet.  449 500 

V.  Weston 46  Wis.  134 305 

Whaley  v.  Dawson 2  Sch.  &  Lef.  367 464 

Wheeler  v.  Lozee 12  How.  Pr.  446 353 


TABLE    OF    CASES.  Iv 

Page. 

Wheeler  *>.  Spinola- 54  N.Y.  377 8i 

V.  Westgate 4  How.  Pr.   269 353 

W.Wheeler 33  Me.  347 " 

V.  Wheeler 5  Lans.  355 330 

Whitaker  7/.  Bramson 2  Paine  U.  S.  2og 502 

White  z'.   Albertson 3  Dev.  241 407 

V  Brooks 43  N.  H.  402 n 

V.  Sayre 2  Ohio,  no 12 

V,  Sheldon 4  Nev.  280 45i 

V.  Wilson 14  Vesey,  151 43i 

Whithed  v.  Mallory 4  Cush.  138 300 

Whitley  v.  Leeds 27  How.  Pr.  378 495 

Whitney  7'.  Dutch 14  Mass.  457 398 

V.  Gunderson 31  Wis.  359 483 

V.   Holmes 15  Mass.  152 474 

V.   Parker i  N.  E.  164 381 

V.  Whitney 14  Mass.  88 5t>5 

V.  Wright 15  Wend.  171 82,  484 

Whittemore  v.  Bean 6  N.  H.  50 84 

V.    Coster 3  Green  Ch.  438 334 

V.  Shaw 8  N.  H.  393 3S4 

Wier  V.  Tate 4  Ired.  264 21 

Wiggin  V.  Wiggin 43  N.  H.  561 56 

Wilcox  V.  Lucas 121  Mass.  21 420 

V.  Williams 5  Nev.  206 452 

Wild  W.Oliver 21  Pick.  559 n 

Wilde  V.  Jenkins 4  Taige,  481 272,  394 

Wildey  v.  Bonney 31  Miss.  652 466 

Wilkin-.'.  Wilkin I  Johns.  Ch.  in 136,  44i,  499 

Wilkinson  v.  Parish 3  Paige,  653 94.  47i 

z..  Steward 74  Ala.  198 200 

Will  of  Budlong,  Matter  of 1  Cent.  R.  286 408 

Williams  v.  Chadborne 6  Cal.  559 n 

V.  Hernon 13  Abb.  297 349 

V.  Jenkins .  .  1 1  Ga.  595 241 

Williamson  v.  Dale 3  Jolms.  Ch.  290 432 

V.  Reed 3  Johns.  175 n 

V.  Williamson i  Mete.  363 342 

Willard  v.  Willard 5^'  J*'i-  St.  1 19 473 

Wilson  V.  Anthony 18  Ark.  16 45i 


Ivi  TABLE    OF    CASES. 

Page. 
Wilson  V.  Daniel 3  Dall.  401 500 

V.  Duncan 44  Miss.  642 324 

V.  Henry 40  Wis.  594 76 

V.  Reed 3  Johns.  175 11 

Wilton  V.  Tazwell 86  111.  29 381 

Winnipisiogee  Co.  v.  Perley 46  N.  H.  83 420 

Winslow  V.  Kimball 25  Me.  493 505 

Winter  v.  Eckert 93  N .  Y.  368 432 

Wisely  v.  Findlay 3  Rand.  361 190 

Wiser  v.  Wiser 5  Watts,  280 470 

Wiswell  V.  Wilkins 4  Vt.  127 447 

Withers  v.  Patterson 27  Tex.  491 194 

Wood  V.  Clute I  Sandf.  Ch.  199 38,  105 

■0.  Downes 18  Ves.  129 85 

V.  Fleet 36  N.  Y.  499- -SS?.  4i5.  466,  475,  477 

V.  Griffith I  Swanst.  55 85 

V.  King 43  N.  Y.  152 12 

V.  Little 31  Me.  107 195 

V.  Morehouse 45  N.  Y.  369 334 

V.  Sugg 49  Am.  R.  639 439 

Woodbeck  v.  Wilders 18  Cal.  136 467 

Woodbridge  v.  Banning 14  Ohio,  330 253 

Woodhull  V.  Little 102  N.  Y.  165 338 

Woodruff  V.  Cook 14  How.  Pr.  481 347 

V.  Cook 47  Barb.  304 46 

Woods  V.  Lee 31  La.  Ann.  505 296,  416 

Woodward  v.  McReynolds 2  Pin.  26S 483 

Woodworth  v.  Campbell 5  Paige,  518 28,  loi 

Woolever  v.  Knapp 18  Barb.  265 448 

Wotten  V.  Copeland 7  Johns.  Ch.  140 46,  191,  268 

Wright  V.  Cane 18  La.  Ann.  579 464 

V.  Delafield 25  N.  Y.  266 379 

V.  Dunning 46  111.  271 384 

V.  Marsh. 2  Greene,  no 246,  264 

V.  Moshier 16  How.  Pr.  457 13 

V.  Wright 59  How.  Pr.  177 14,  261 

Wynehamer  v.  People 13  N.  Y.  318 179 

Y. 
Yaple  V.  Titus 41  Pa.  St,  195 296,  416 


TABLE    OF    CASES.  Ivii 

Page. 

Yazelz/.  Palmer 8i  111.  82 305 

Young  z/.  Algeo 3  Wait.  223 485 

V.  Bickel i  S.  &  R.  467 13^ 

-...Frost I  Md.  377 219,  246 

Youngs  V.  Carter 10  Hun,  194 ^95 


Z. 

Zeller's  Lessee  v.  Eckert 4  How.  U.  S.  289 444 

Zeno  V.  Williams 9  La.  58 3^9 

Ziegler  v.  Grim 6  Watts,  106 44 

Zirkeez/.  McCue 26  Grat.  517 31.  104 

Zointlein  v.  Bram 63  How.  Pr.  240 15 

V.  Bram 100  N.  Y.  12 39 

V.  Bram 9  Abb.  Pr.  N.  S.  444 39 


THE 


LAW  OF  PARTITION 


CHAPTER  I. 

INTRODUCTORY. 

The  original  acquisition  of  title  to  land  in  England 
was  by  conquest.  In  America,  it  was  by  the  right 
of  discovery.  The  right  of  discovery  in  America  has 
been  recognized  by  all  European  nations  that  have 
obtained  a  footing  upon  American  soil.  The  sovereignty 
making  the  original  discovery  was  admitted  to  have 
absolute  dominion  and  ownership  over  the  lands  dis- 
covered. The  crown  of  England,  by  virtue  of  discovery, 
was  invested  with  the  title  to  most  of  the  lands  in  the 
United  States.^  That  portion  of  the  United  States  known 
as  the  French  Colonies,  was  claimed  by  France  by 
right  of  discovery.  The  same  claim  was  sustained  by 
Portugal  to  what  what  was  known  as  the  Brazils  in  South 
America.  In  fact,  our  whole  country  has  been  granted, 
by  right  of  discovery    by    the    crown    (mostly    by   the 

1    Johnson  v.  Mcintosh,  8  Wheat.  543. 

[I] 


2  THE     LAW    OF     PARTITION. 

crown  of  England),  while  the  lands  were  in  the  occupa- 
tion of  the  Indians.  By  these  grants,  the  soil  and  right 
of  domain  were  conveyed,  and  the  titles  to  land  are  much 
dependent  on  these  grants.  When  the  United  States 
acquired  the  lands  belonging  to  other  nations  by  right  of 
discovery,  it  acquired  the  same  rights  to  which  the  nation 
making  a  discovery  was  entitled.  The  government 
acquiring  the  rights  to  the  soil  and  to  the  domain,  grants 
rights  of  property  in  the  soil  to  individuals,  and  thereby 
the  foundation  for  co-tenancy  was  laid,*  that  is,  joint  ten- 
ancy and  tenancy  in  common — the  term  joint  tenancy 
being  now  but  little  known  in  American  law,  though 
cases  of  joint  tenancy,  sometimes,  technical  in  their 
nature,  are  presented  to  the  American  courts  for  decision. 
Sovereignty  over  lands  in  any  territory  of  the  United 
States  can  never  be  in  abeyance.  Whenever  our  govern- 
ment acquired  lands, — as,  for  instance,  upon  the  acquis- 
ition of  California  from  Mexico, — it  acquired  the  sover- 
eignty as  well  as  the  fee  in  all  the  public  lands  within  the 
acquisition,  and  the  full  right  to  dispose  of  such  lands  as 
it  may  see  fit.  As  soon  as  a  Territory  shall  become  a 
State,  the  title  to  the  public  land  passes  to  the  State, 
and  the  State  may  grant  the  land  and  pass  title  to  indi- 
viduals.^ 


»  The  following  are  of  interest  on  questions  pertaining  to  land 
titles.  Sullivan  on  Land  Tit.  c.  2  ;  i  Bl.  Com.  107 ;  2  P.  Wm.  75 ; 
5  Pet.  48,  49,  70;  6  Id.  544;  9  Id.  746  ;  12  Id.  436  ;  16  Id.  409  ;  8 
How.  U.  S.  232  ;  19  Id.  501  ;  23  Id.  463;  11  Wall.  619;  17  Id.  243; 
19  Id.  593;  5  Otto,  525;  Bald.  220;  i  Paine,  471.  Most  of  these 
cases  cite  Johnson  v.  Mcintosh,  8  Wheat.  543;  see  Fletcher  v. 
Peck,  6  Cranch,  646;  Jackson  v.  Wood,  7  Johns.  296;  Campbell  v. 
Hall,  I  Cowp.  204;  I  Ves.  445  ;  7  Niles  Reg.  229;  Martin's  Law  of 
Nations,  67,  69. 

2    People  V.   Folsom,   5   Cal.   373;  Friedman  v.  Goodwin,  i 


INTRODUCTORY.  3 

The  principle  of  American  law  has  been  to  uphold  in- 
dividual property  and  individual  rights,  and  to  encourage 
such  ownership  with  the  people.  The  absolute  right  of 
every  man,  inherent  under  the  American  and  English 
law,  is  that  of  property,  and  the  right  to  use,  enjoy  and 
dispose  of  such  property  at  will.  This  right  gives  to  the 
owner  the  power  to  control  his  or  her  property,  and  to 
enjoy,  as  his  own,  the  proceeds  of,  or  acquisitions  from 
such  property.^  When  the  ownership  is  a  joint  ownership 
in  common,  the  law  extends  to  each  the  same  protection, 
and  demands  of  each  co-tenant  the  same  regard  for  his 
fellow  co-tenant,  and  grants  to  each  the  same  equities, 
and  gives  to  each  the  right  to  separate  his  common  inter- 
est from  the  rest,  and  to  enjoy  his  own  part  of  the  prop- 
erty separately.  Such  separation  must  be  upon  an  equit- 
able basis.  This  individual  right  of  property,  and  the  regard 
of  the  law  for  private  property,  is  one  of  the  great  princi- 
ples of  the  great  charter  of  England,  which  declares  that 
no  freeman  shall  be  disseized  or  divested  of  his  freehold, 
or  of  his  liberties  or  free  customs,  but  by  the  judgment  of 
his  peers,  or  by  the  law  of  the  land.  This  principle  has 
been  strengthened  by  statutes  enacted  by  the  legislative 
bodies  of  civilized  nations  to  the  stronger  and  more  bene- 
ficent principle  that  no  man  shall  be  disinherited,  nor  put 
out  of  his  franchise  or  freehold,  unless  he  may  be  duly 
brought  to  answer,  and  given  the  privilege  to  show  why 
he  should  not  be  disseized,  disinherited  or  dispossessed  of 
his  property,  and  that  he  might  be  forejudged  by  due 
course  of  law.    If  anything  be  done  contrary  to  this,  such 

McCall  C.  C.  142;  Pierce  v.  Morrill,  26  Cal.  353  ;    Martin  v.  Wad- 
dell,  16  Pet.  367  ;  see  14  Cal.  375  ;  17  Id.  199  ;  3  How.  U.  S.  230; 
8  Barb.  189;  19  N.  Y.  96. 
3    I  Blackstone,  139. 


4  THE    LAW    OF    PARTITION. 

act  shall  be  redressed  and  holden  as  void.  The  law  holds 
the  rights  of  persons  so  sacred  that  the  nation  making  the 
law  is  in  no  way  allowed  to  interfere  with  the  rights  of  its 
subjects  in  property  without  making  a  proper  compensa- 
tion therefor.  And  it  may  be  stated  as  a  general  rule 
that  a  nation  w^hich  by  its  law  disregards  the  individu- 
ality of  property  disregards  civilization  and  common  hon- 
esty. Private  property  shall  not  be  taken  from  any 
person  without  proper  compensation  is  made  therefor. 
This  is  an  American  principle  in  its  strongest  sense.^  The 
law  of  partition  is  the  outgrowth  of  the  ownership  of 
land  by  coparceners.  "  Parceners,"  or  coparceners  are, 
so  called  because  the  lands  of  Avhich  they  are  parceners 
may  be  partitioned  or  divided  among  them.  There 
may  be  parceners  by  common  law  and  parceners  by  cus- 
tom.' 

"  As  to  parceners  by  common  law,  if  a  man  dies,  intes- 
tate, seized  of  lands  in  fee,  and  leaves  only  daughters, 
the  lands  will  descend  equally  to  all  the  daughters,  or,  if 
he  has  no  daughters,  and  no  brothers,  the  lands  will 
descend  equally  to  all  his  sisters,  if  he  has  any  ;  and,  if 
there  are  no  nearer  heirs,  the  lands  will  descend  to  his 
aunts.  The  descent  is  the  same  if  a  man  dies  seized  of 
lands  in  tail,  except  where  such  estate  in  tail  was  limited 
to  such  man  and  the  heirs  of  his  body,  for  in  that  case 
the  lands  only  descend  to  those  who  are  heirs  of  the  body. 
In  all  cases  where  several  females  take  one  inheritance  by 
descent,  they  are  called  parceners  :  and  all  lands  or  tene- 
ments, including  a  rent-charge,  may  descend  in  this  man- 
ner.    If  there  be  a  title  of  dignity  descendible  to  heirs  of 

^  N.  Y.  Const,  art.  I.  §  7  ;  see  other  State  constitutions,  and 
the  law  of  Eminent  Domain. 

s    17  Penny  Encyclopedia,  242. 


INTRODUCTORY.  5 

the  body,  the  lands  and  tenements  belonging-  to  it  may 
descend  to  parceners,  but  the  dignity  itself  does  not 
descend,  for  all  the  parceners  only  make  one  heir,  and  a 
title  of  dignity  is  not  in  its  nature  divisible  :  the  dignity, 
therefore,  will  be  in  abeyance."  *  The  above,  quoted  from 
Barron,  is  an  ancient  definition  of  parceners,  and  an  old- 
time  view  of  the  law  pertaining  thereto,  and  is  given  that 
the  student  may  by  reading  see  the  difference  which  has 
been  made  by  time  and  the  greater  wisdom  and  libe- 
rality of  law-makers,  and  fully  understand  the  sacredness 
of  individual  rights.  Now,  the  term  parceners  is  but  little 
used,  and  in  time,  as  a  law  term,  may  become  purely  a 
matter  of  history. 

Partition  is  the  severance  of  undivided  interests  in 
common  property.  Parceners  were  first  allowed  to  make 
partition  of  land  among  themselves.  The  Court  of 
Chancery,  in  course  of  time,  acquired  a  jurisdiction  in 
these  matters,  and  a  bill  could  be  filed  in  chancery  pray- 
ing for  partition,  which  prayer  would  be  granted  on  the 
parcener  making  out,  or  proving  title.  The  modus  oper- 
andi in  the  Courts  of  Chancery,  was  by  issuing  a  com- 
mission out  of  the  court  to  commissioners,  who  would 
go  and  divide  the  lands,  upon  which  the  parties  would 
execute  mutual  conveyances.  Then  the  parties  held 
their  lands  separately.  The  writ  of  partition  was  abol- 
ished,' since  which  partition  can  only  be  enforced  by  a 
suit  in  equity  brought  for  that  purpose,  though  questions 
of  law  and  fact, — such  as  disputed  title, — may  in  some 
instances  be  tried.  The  statutes  and  the  code  practice 
in  some  States  allow  this,  deeming  it  best,  and  prohibit- 
ing a  multiplicity  of  suits. 

0  Barron,  488.  ^  3  &  4  William  IV.  c.  27. 


6  THE    LAW    OF    PARTITION. 

Littleton  says  that  parceners  are  so  called:  "  Because 
they  may  be  constrained  to  make  partition."  And  he 
mentions  a  number  of  ways  of  making  partition,  four  of 
which  are  by  consent,  and  one  by  compulsion.^  Black- 
stone,  in  commenting  upon  Littleton,  says  :  "There  are 
some  things  which  in  their  nature  are  impartable.  The 
mansion-house,  common  of  estovers,  common  of  piscary, 
uncertain,  or  an  other  common,  without  stint  shall  not 
be  divided."*  The  estate  in  coparcenary  may  be  dissolved, 
either  by  partition,  which  disunites  the  interest,  by  alien- 
ation, or  by  death,  vesting  the  title  in  the  living  by 
heirship.^" 

The  jurisdiction  of  courts  of  equity  in  cases  of  parti- 
tion is,  without  doubt,  very  ancient.  By  some  writers 
this  jurisdiction  was  considered  a  usurpation,  and  that  it 
was  an  unrighteous  authority  assumed  upon  the  part  of 
courts  of  equity.  It  is  admitted  that  the  jurisdiction  of 
courts  of  equity  dates  back  to  the  reign  of  Queen  Eliza- 
beth," a  period  so  remote  that,  at  least,  one-half  which 
at  present  is  termed  the  common  law,  and  which  regu- 
lates the  rights  of  property,  and  the  operation  of  con- 
tracts, has  originated  since  that  time,  and  much  of  the 
ancient  law  and  practice  has  been  abrogated  by  more 
wise  and  more  liberal  law. 

It  is  generally  supposed  that  a  writ  of  partition  would 
lie  only  between  coparceners.  Until  the  reign  of  Henry 
VIII.  this  writ  of  remedial  justice  received  a  narrow 
construction,  and  with  such  narrow  construction  was  the 
known  and  settled  doctrine.     Undoubtedly,  in  the  courts 

'  Littleton,  §  309. 

'  I  Blackstone,  190. 
^"  I  Blackstone,  191  ;  Litt.  292. 
^^  I  Fantl.  Eq.  b.  i,  ch.  i,  §  3,  note. 


IRTRODUCTORY.  7 

it  met  with  opposition,  as  the  general  laws  then  favored 
estates  in  tail,  and  not  a  commonalty  of  interests  in  prop- 
erty. It  would  appear  that  the  principal  spirit  of  the 
law  was  to  favor  the  sovereignty  of  the  crowned  head 
and  of  the  church,  and  to  build  up  and  strengthen  a  nobil- 
ity, and  not  to  assist  the  people  in  their  personal  and 
private  rights.  The  law  received  such  a  narrow  con- 
struction that  the  alienee  could  not  have  partition 
against  the  parcener,  and  the  tenant  in  common  against 
his  co-tenant.  Notwithstanding  the  law  was  silent  as  to 
the  ahenee  and  tenant  in  common,  and  notwithstanding 
that  by  reason  of  silence  and  of  the  position  of  the 
parties,  it  v/as  upon  its  face  that  it  constituted  a  clear 
case  for  the  interposition  of  the  Court  of  Chancery,  upon 
the  ground  of  the  total  defect  of  any  remedy  at  law,  and 
yet,  considering  the  unquestionable  equitable  right  of  the 
parties  to  partition,  that  right  was  denied.  Such  was 
the  condition  of  the  rights  of  the  property,  especially  in 
cases  of  a  community  of  interests  until  the  statutes 
of  31  Henry  VIII.  ch.  i,  and  32  Henry  VHI.  ch.  32, 
and  up  to  that  time  no  writ  of  partition  for  a  joint 
tenant  or  a  tenant  in  common.^^  Without  a  doubt,  gross 
injustice  was  often  the  result  of  the  narrow  rule. 

The  statutes  of  Henry  VIH.  allowed  compulsory 
partition  between  joint  tenants  and  tenants  in  common, 
of  any  estate,  or  estates,  of  inheritance  in  their  own 
riglit,  or  in  the  rights  of  their  wives.  By  the  last  act, 
the  one  in  the  thirty-second  year  of  his  reign,  partition 
was  allowed  where  some  of  the  tenants  had  estates  for  a 
term  of  years,  or  for  life,  with  other  that  had  estates  of 

^^Co.  Lit.  175,  a  ;  2  Bl.  Com.  185  ;  Burning  2/.  Nash,  i  Ves.  &  B. 
555  ;  I  Story's  Eq.  602,  §  647, 


8  THE   LAW    OF    PARTITION. 

inheritance  or  freehold  in  lands.  It  was  only  allowed 
where  there  was  an  actual  tenancy  or  holding  of  lands  of 
the  parties  to  the  writ.  In  case  of  remainderman, 
another  writ  against  them  was  necessary,  when  his 
estate  fell  into  possession.^^  In  the  absence  of  any 
statutory  or  code  regulation,  the  common  law  must 
govern,  receiving  from  the  court  its  most  liberal  con- 
struction in  favor  of  all  the  parties  to  the  action.  Our 
statutes  have  deprived  the  common  law  of  many  of  its 
inconsistent  and  in  equitable  doctrines.  They  have  also 
enlarged  the  powers  of  the  courts,  so  that  now  where  there 
is  a  joint  interest  in  property,  that  interest  may  be  severed 
upon  just  and  equitable  principles,  and  the  interest 
of  all  parties  receive  protection  by  the  court,  even  going 
so  far  as  to  allow  and  decree  a  compensation  to  be  made 
to  one  or  more  of  the  parties  by  the  others,  so  that  the 
severance  of  their  shares  may  be  equitable. 

In  the  United  States,  technical  joint  tenancy  is  for  the 
most  part  nearly  aboHshed.  The  majority  of  all  cases  in 
partition  that  arise  in  this  country  are  between  tenants  in 
common,  there  being  no  entail,  and  a  due  regard  upon  the 
part  of  the  law  for  personal  rights  and  undivided  prop- 
erty has  brought  this  change,  which  is  a  great  illus- 
tration of  the  wisdom  of  our  form  of  government. 

^  ^  Lit.  R.  300 ;    Sullivan  v.  Sullivan,  66  N.  Y.  37  ;  Broome  & 
Had.  Com.  71. 


CHAPTER  II. 


CO-TENANCY 


The  American  law  as  to  tenants  in  common  differs 
somewhat  from  the  EngHsh  law.  The  English  rule  is, 
that  tenants  in  common  are  such  as  hold  by  several  and 
distinct  titles,  but  by  unity  of  possession,  "because  none 
knoweth  his  own  severalty,  and  therefore  they  all  occupy 
promiscuously."^  But  the  American  rule  is,  that  tenants 
in  common  are  persons  who  hold  by  unity  of  possession. 
Such  persons  may  hold  by  several  and  distinct  titles,  or 
by  a  title  derived  at  the  same  time,  by  the  same  deed, 
devise  or  descent^  In  all  cases  of  tenancy  in  common  the 
tenants  are  deemed  to  each  have  a  separate  and  distinct 
freehold,  which  is  a  leading  circumstance  in,  and  a  neces- 
sary element  of  a  tenancy  in  common.  Each  tenant  is 
considered  as  being  solely  and  severally  seized  of  his  share, 
and  as  having  the  right  to  govern  and  control  the  same. 
He  is  not  a  copartner  of  his  co-tenants  in  common  and 
he  has  no  control  of  their  share  or  interest  in  the  land, 
neither  is  he  in  control  or  possession  of  the  shares  of  his 
co-tenants. 

Tenants  in  common  are  accountable  to  each  other  for 
the  profits  of  the  estate  ;  and  if  one  of  them  turns  another 
out  of  possession  an  action  of  ejectment  will   lie  against 

'  2  Black.  192.  2  4  Kent.  387. 

•  [9] 


lO  THE    LAW    OF    PARTITION. 

him.'  If  one  of  them  receive  more  than  his  share  of  the 
hire  of  the  property,  he  is  liable  to  his  co-tenant/  This 
has  been  frequently  held  in  New  York  courts,  and  is  also 
the  rule  in  Massachusetts/  Where  one  of  several  tenants 
in  common  is  in  occupation  of  the  premises  he  is  not 
chargeable  with  rent,  but  must  pay  for  repairs,  interest 
and  taxes.  In  the  case  here  cited,  the  distinguished 
judge  who  gave  the  opinion  upon  which  the  decision  of 
the  general  term  was  made,  says  that  the  term  "repairs" 
means  ordinary  repairs,  and  not  improvements.^  By  this 
it  would  seem  that  one  tenant  in  common  can  not  make 
improvements  upon  the  property  owned  in  common  at  an 
expense  to  his  co-tenants.  It  is  easy  to  see  the  reason 
for  this  wholesome  rule  :  if  the  rule  were  otherwise,  one 
co-tenant  might  ruin  his  fellow-tenants.  One  tenant  in 
common  is  not  liable  to  his  co-tenants  for  mere  occupancy, 
but  may  be  liable  where  he  has  received  rents  from  others 
for  the  premises  or  part  of  them,  or  where  there  has  been 
an  agreement  to  pay,  or  a  waste  committed  by  the 
removal  or  sale  of  the  common  property.'  One  tenant  in 
common  is  liable  to  another  for  waste,  such  as  cutting 
down  and  clearing  wood  from  land,*  the  statute  giving 
damages  to  one  tenant  in  common  for  waste  by  another, 
only  where  the  tenancy  is  admitted."  In  North  Carolina 
the   statute   is  confined  to  cases  of  permanent   injury." 

^  Bouv.  Law  Diet.  712. 

*  Cochran  v.  Carrington,  25  Wend.  409. 

^  Brigham  v.  Eveleth,  9  Mass.  538 ;  Small  v.  Robinson,  9  Hun, 
418.    See  3  Pick.  420. 

®  McLear  v.  De  Laney,  19  Week.  Dig.  252. 

^  Vanderzee  z/.  Slingerland,  Id.  107,  citing  18  Hun,  153;  18 
Barb.  265  ;  44  Id.  447  ;  66  Id.  553. 

^  Johnson  v.  Johnson,  2  Hill  (S.  C.)  Ch.  277. 

•  Prescot  V.  Nevers,  4  Mas.  (C.  C.)  326. 
1"  Smith  V.  Sharpe,  Busb.  (N.  C.)  L.  91. 


CO-TENANCY.  1 1 

Where  a  petition  for  partition  is  pending-  an  injunction 
against  waste  will  be  granted  in  proper  cases."  But  after 
partition  has  been  decreed  the  tenant  will  not  be  enjoined 
from  farming  contrary  to  the  custom  of  the  country.^* 
Tenants  in  common  can  do  no  wrong  as  against  the  other. 
Care  and  discretion  must  be  used  in  the  care  of  the 
property  owned  in  common,  by  the  tenant,  or  his  agent 
having  the  immediate  care,  custody,  or  possession  of  the 
same.  One  tenant  in  common  or  joint  tenant  may  main- 
tain trover  against  his  co-tenant  for  the  improper  sale  or 
the  destruction  of  the  common  property  held  in  tenancy.^' 
The  interest  of  the  tenants  in  common  in  the  property 
is  an  interest  in  which  each  has  a  property  right  that  can 
not  be  disturbed  by  the  other.  An  action  will  lie  where 
one  co-tenant  applies  the  property  exclusively  to  his  own 
use,  to  the  total  exclusion  of  his  co-tenants,  and  refuses 
to  sever  where  severance  is  possible."  The  mere  with- 
holding of  the  property  by  one  from  his  co-tenant  is  not 
conversion/'  as  one  has  as  much  right  to  the  possession 
as  the  other.'^ 

'  ^  Hawley  v.  Clowes,  2  Johns.  Ch.  122. 

^-  Baily  z/.  Hobson,  L.  R.  5  Ch.  App.  180. 

'^  Turner  v.  Waldo,  40  Vt.  51  ;  Gilbert  v.  Dickerson,  7  Wend. 
449  ;  White  v.  Brooks,  43  N.  H.  402  ;  Dain  v.  Cowing,  22  Me.  347  ; 
Williams  v,  Chadbourne,  6  Cal.  559  ;  Bell  v.  Lyman,  i  Mon.  (Ky.) 
39;  Arthur  7/.  Gayle,  38  Ala.  259 ;  Weld  v.  Oliver,  21  Pick.  559; 
Roston  V.  Morris,  25  N.  J.  L.  173 ;  Burton  v.  Williams,  5  B.  &  Aid. 
395;  Perminler  z/.  Kelley,  18  Ala.  716;  Wheeler  z/.  Wheeler,  33 
Me.  347  ;  Wilson  v.  Reed,  3  John.  175  ;  Lowe  v.  Miller,  3  Gratt. 
205  ;  Dykeman  v.  Valiente,  42  N.  Y.  549 ;  Brightman  v.  Eddy,  97 
Mass.  478  ;  Munford  v.  McKay,  8  Wend.  442  ;  Hull  v.  Page,  4  Ga. 
428. 

'  ^  Fiquet  v.  Allison,  12  Mich.  328  ;  Lobdell  v.  Stowell,  51  N.Y. 
70;  Benedict  z/.  Howard,  31  Barb.  571;  Agnew  v.  Johnson,  \^ 
Penn.  St.  377 ;   Strickland  v.  Parker,  54  Me.  263. 

'^  Wilson  V.  Reed,  3  Johns.  175. 

^^  Wild  V.  Oliver,  21  Pick.  559. 


12  THE    LAW    OF    PARTITION. 

One  tenant  in  common  can  lawfully  convey  a  part  of 
his  undivided  estate  by  specific  bounds,  but  the  courts 
claim  that  this  point  is  attended  with  considerable  diffi- 
culty, by  reason  of  the  injurious  consequences  of  such  sale 
to  the  co-tenant."  The  law  upon  this  question  was  con- 
sidered settled  in  Ohio. 

One  tenant  in  common  has  a  right  to  take  peaceable 
possession  of  the  premises  owned  in  common  ;  and 
although  such  possession  is  acquired  by  stealth,  yet,  if 
without  force  or  tumult,  or  a  breach  of  the  peace,  it  will 
not  be  illegal  ;  but  he  has  no  right  to  oust  or  debar  his 
co-tenant  from  joint  possession, ^^  The  court  of  appeals 
of  New  York  have  held,  that  where  one  of  the  tenants  in 
common  is  in  possession  of  the  entire  premises  without 
agreement  with,  or  objection  on  the  part  of  his  co- 
tenants,  he  is  properly  chargeable  with  the  rent,  and  is 
not  entitled  to  have  the  same  apportioned."  And  if 
several  tenants  are  in  possession,  the  rent  may  be 
apportioned. 

The  law  of  the  State  of  New  York,  that  tenants  in 
common  must  all  join  in  an  action  of  trespass  to  recover 
damages  for  injuries  to  real  estate  held  in  common,  is  not 
changed  by  the  Code  ;  and  where  a  defect  of  parties  is 
apparent  upon  the  face  of  the  complaint,  it  can  be  made 
available  to  the  defendant  only  by  demurrer.""  Where 
title  to  lands  is  in  several  tenants  in  common,  a  joint 
action  of  ejectment  cannot  be  maintained  by  two  or 
more,  less  than  the  whole  number  ;  all  must  join  in  one 
action    to    recover   the    whole    premises,    or   a   separate 

^^  White  V.  Sayre,  2  Ohio,  no, 

*^  Wood  V.  King,  43  N.  Y.  152  ;  Hyatt  v.  Wood,  4  Johns.  150. 

*'  Damainville  ■y.  Munn,  32  N.  Y.  197, 

2"  Dupuy  V.  Strong,  3  Keyes,  603.     See  33  N.Y.  43. 


CO-TENANCY.  13 

action  must  be  brought  by  each  to  recover  his  share. 
If  the  consent  of  one  or  more  to  bring  a  joint  action 
cannot  be  obtained,  such  persons  refusing  to  consent 
should  be  made    parties  defendant  to  the  action.-^ 

An  agreement  for  the  occupation  and  working  of  a 
farm,  and  dividing  the  products  and  sharing  the  expenses, 
does  not  create  the  relation  of  landlord  and  tenant,  but 
makes  the  parties  to  it  tenants  in  common." 

The  trustees  of  a  school  district  may  lawfully 
acquire  an  interest  in  real  estate  for  a  school-house  site, 
as  tenants  in  common  with  others."'  If  they  could  not 
do  so  under  the  general  school  law,  an  act  of  the  legisla- 
ture legalizing  the  site  selected  and  occupied  by  them, 
upon  land  held  by  several  tenants  in  common,  and 
authorizing  them  to  acquire  title  thereto,  followed  by 
the  purchase  of  an  undivided  interest  therein,  clothes 
them  with  the  rights  of  tenants  in  common  with  the 
other  owners,  and  as  such,  the  district  hold  an  interest  in 
the  land,  and  when  in  possession  of  such  land,  with  other 
co-tenants,  with  a  school-house  thereon,  such  possession 
cannot  lawfully  be  disturbed  by  a  co-tenant  ;  and,  if  such 
co-tenant  enters  by  force  and  excludes  such  trustees, 
they  may  lawfully  eject  him  therefrom,  using  such  force 
as  may  be  necessary  ;  and  the  tenant  so  ousted  cannot 
maintain  an  action  for  trespass,  nor  an  action  for  forcible 
entry,  for  removing  him. 

^^  Hasbrouck  v.  Valentine,  62  N.  Y.  475.  See  6  Hill,  634  ;  i 
Pet.  73;  5  Cow.  188  ;  3  Wend.  149  ;  2  Cai.  169  ;  6  Barb.  132  ;  2  Hill, 
526. 

--  Wright  V.  Moshier,  16  How.  Pr.  457 ;  Taylor  v.  Bradley,  39 
N.  Y.  129. 

^^  Kings/.  Phillips,  i  Lans.  421. 


14  THE    LAW    OF    PARTITION. 

A  PRIVATE  ASSOCIATION  of  individuals  for  the  con- 
struction and  operating  of  a  telegraph  line  is  not  a  part- 
nership. The  members  are  mere  tenants  in  common  of 
the  property  and  franchise,  and  a  majority  cannot  bind  a 
minority  of  them  unless  by  special  agreement.  The 
articles  of  association  provided  that  the  affairs  of  the 
association  should  be  managed  by  three  trustees.  The 
court  held  that  the  trustees  must  be  appointed  by  a 
majority  of  the  stockholders." 

An  ACCOUNTING  may  be  had  between  the  tenants  in 
common.  The  law  does  not  assume  that  one  tenant  can 
occupy  the  premises,  and  have  the  use,  benefit  and 
income  thereof  as  his  own,  and  deprive  his  co-tenants  of 
the  benefit  of  their  respective  shares  ;  but  it  also  assumes 
that  if  one  co-tenant  is  allowed  by  his  fellow  co-tenants 
to  occupy  the  premises  without  any  express  agreement 
as  to  such  occupancy,  and  he  does  nothing  to  prevent 
his  co-tenants  from  occupying  the  premises  with  him,  he 
is  not  liable  to  account  to  his  co-tenants  for  the  rental 
value  thereof  The  New  York  statute  makes  him  only 
liable  for  what  he  receives  over  and  above  his  just  pro- 
portion."' One  tenant  in  common  may  maintain  an 
action  for  an  accounting  among  his  co-tenants,  against 
those  who  have  received  more  than  their  share  of  the 
rents  and  profits."^  An  action  will  lie  for  property  sold 
from  the  land.'' 

Husband  and  v^ife  may  be  tenants  in  common. 
The  statutes  of  New  York''  make  provision  who  are  and 

-*  Van  Aernam^'.  Phelps,  9  Barb.  500. 

-^  Rcseboom  z^.  Roseboom,  15  Hun,  309. 

'"  Josylin  v.  Josylin,  9  Hun,  388. 

-'  Wright  V.  Wright,  59  How.  Pr.  176. 

^  Every  estate  granted  or  devised  to  two  or  more  persons,  in 


CO-TENANCY.  1 5 

who  are  not  tenants  in  common.  The  statutes  of  i860 
concerning  the  rights  and  liabilities  of  husband  and  wife, 
ha?  been  construed  by  the  courts,  to  the  effect  that 
where  lands  have  been  conveyed  to  a  husband  and  wife 
jointly,  without  any  statement  in  the  deed  as  to  the 
manner  in  which  the  grantees  shall  hold,  they  are 
tenants  in  common,  and  not  tenants  by  entirety,  and 
the  grantee  in  conveyance  by  the  wife  of  an  undivided 
half  of  the  premises,  is  entitled  to  a  partition.  "^  Judge 
Danforth,  of  the  New  York  court  of  appeals,  agrees  with 
the  views  of  the  court  in  the  case  last  cited. ""  In  Meeker 
1'.  Wright,  one  Smith  deeded  land  to  Samuel  Dailey  and 
Cordelia  Dailey,  who  were  husband  and  wife.  No  state- 
ment was  made  in  the  deed  as  to  the  manner  in  which 
the  grantees  should  hold  the  lands.  Justice  Danforth 
says  :  "  Upon  this  state  of  facts,  it  is  plain  that  the 
grantees  became  tenants  in  common  of  the  premises, 
for  the  statute  expressly  declares  that  every  estate 
granted  to  two  or  more  persons  shall   be  a  tenancy  in 

their  own  right,  shall  be  a  tenancy  in  common,  unless  expressly 
declared  to  be  in  joint  tenancy;  but  every  estate  vested  in  execu- 
tors or  trustees  as  such,  shall  be  held  by  them  in  joint  tenancy. 
This  section  shall  apply  as  well  to  estates  already  created  or 
vested,  as  to  estates  hereafter  to  be  granted  or  devised.     3  R.  S. 

2179.  §  44- 

-^  Zorntlein  v.  Bram,  63  How.  Pr.  240  ;  citing  31  Barb.  314;  20 
N.  Y.  320;  15  Wend.  175  ;  i  Sand.  Ch.  214;  Hoff.  Ch.  71  ;  5  Johns. 
Ch.  431  ;  9  Abb.  Pr.  N.  S.  444 ;  16  Johns.  1 10 ;  S  Cow.  277  ;  3  Hun, 
519  ;  76  N.  Y.  162  ;  chap.  472,  N.  Y.  Laws  1880. 

^"Meeker  v.  Wright,  76  N.  Y.  262  ;  citing  7  Cow.  360;  13  N.  Y. 
509  ;  2  Id.  333;  31  Barb.  314;  62  Barb.  373;  17  How.  Pr.  413 ;  23  N. 
Y.  529  ;  37  N.  Y.  35  ;  53  N,  Y.  93  ;  45  N.  Y.  230 ;  47  N.  Y.  577  ;  75 
N.  Y.  103;  14  N,  Y.  430  ;  31  Barb.  313;  49  Barb.  162  ;  9  Abb.  Pr. 
N.  S.  444 ;  3  Hun,  519  ;  3  T.  &  C.  574 ;  2  Wilson,  254 ;  44  N.  Y. 
27;  7  Johns.  Ch.  57 ;  15  Wend.  616;  19  Id.  175  ;  17  Johns.  548  ;  61 
Barb.  475  ;  chap.  90,  Laws  i860.     See  11  Hun,  533. 


1 6  THE     LAW    OF    PARTITION.     ' 

common,  unless  expressly  declared  to  be  a  joint  ten- 
ancy." Chapter  80  of  New  York  Laws  of  i860,  upon  this 
question  says  :  "  That  the  property,  both  real  and  per- 
sonal, which  comes  to  any  married  woman  by  grant, 
and  the  rents,  issues  and  proceeds  of  all  such  property, 
shall,  notwithstanding  her  marriage,  be  and  remain  her 
sole  and  separate  property,  and  shall  not  be  subject  to 
the  control  or  interference  or  her  husband,  or  liable  for 
his  debts."^ 

Thus  it  would  seem,  if  we  are  to  follow  the 
views  of  Danforth,  J„  that  in  New  York  the  stat- 
utes have  changed  the  common  -  law  rule,  and  that 
the  husband  or  wife  may  maintain  an  action  for  partition 
against  the  other,  although  the  proposition  that  the 
wife  or  husband  may  partition  against  the  other  does  not 
appear  to  be  fully  settled  in  the  mind  of  Judge  Dan- 
FORTH.  But  in  1883  the  New  York  court  of  appeals 
settled  the  question  that  the  common-law  doctrine  has 
not  been  abrogated  by  the  statutory  provisions  above 
referred  to.'"  The  reasoning  of  Judge  Danforth  seems 
to  be  clear  in  the  premises,  and  there  is  not  much  doubt 
but  what  in  time  the  better  reasoning  of  Judge  DAN- 
FORTH will  be  adopted  as  a  statutory  regulation,  and 
the    old    common-law    doctrine    be    abrogated.      Judge 

^  Possession  of  one,  possession  of  all.  Trespass  and  trover. 
See  I  Hill,  234;  15  L.  C.  E.  113;  i  Lans.  246;  19  Barb.  665. 

Who  ARE  tenants  IN  common.  2  Barb.  635;  15  Id.  335;  23 
Cal.  521  ;  82  Ind.  334;  67  Mo.  J 73;  31  N.  J.  L.  554;  72  Penn.  St. 
551  ;  48  Am.  Rep.  160  ;  94  Ind.  119 ;  51  Am.  Dec.  178  ;  17  Ala.  362. 

Lease  to  work,  relation  created  by.  39  N.  Y.  137;  9 
Am.  Rep.  303;  37  Conn.  44;  i  Lans.  246;  2  Id.  219.  These 
questions  are  fully  discussed  in  Putnam  v.  Wise,  i  Hill,  234  ;  L. 
C.  E.  113. 

^^  Bertles  v.  Nunan,  92  N.  Y.  152. 


CO-TENANCY.     '  T  *J 

Earle,  in  his  opinion  in  Bertles  v.  Nunan,  says  in  sub- 
stance, that  the  common-law  rule  is  based  upon  the 
unity  of  husband  and  wife,  and  that  by  that  rule  the 
husband  was  made  responsible  to  society  for  his  wife, 
and  was  responsible  for  her  torts  and  frauds,  and  in 
some  cases  for  her  crimes.  The  judge  seems  to  have 
ignored  the  fact  that  as  the  condition  of  society  has 
improved,  and  civilization  has  advanced,  the  law-makers 
have  from  time  to  time  bettered  the  business  position  of 
married  women  by  giving  them  more  rights  and  more 
powers,  and  abrogating  the  harsh  and  arbitrary  powers 
which  the  common  law  granted  to  the  husband  over  his 
wife's  property.  But  the  question  seems  to  have  been 
settled  by  the  court  of  appeals  that  the  law  is,  that  hus- 
band and  wife,  under  a  conveyance  to  them  jointly,  take 
and  hold  the  property  not  as  tenants  in  common,  but  as 
tenants  by  entirety,  and  one  cannot  maintain  an  action  of 
partition  against  the  other." 

Joint  tenants.  Two  or  more  persons  to  whom  are 
granted  lands  or  tenements,  to  hold  in  fee  simple,  fee  tail, 
for  life,  for  years,  or  at  will,  are  joint  tenants,  and  the 
estate  which  they  thus  hold  is  called  an  estate  in  joint 
tenancy.     The   tenants  thereof  must  have  one  and  the 

«=  On  the  common  law  doctrine.  See  49  Barb.  155;  15  Wend. 
615;  18  Barb.  159;  i  Dana,  244;  7  Yerger,  319;  14  N.  Y.  430;  5 
Mass.  521  ;  6  Bush  (Ky.)  199;  5  Wis.  102  ;  16  Vt.  309;  25  Mich. 
347  ;  26  Ind.  428  ;  50  Miss.  531  ;  13  Me.  182  ;  i  Washburn  on  Real 
Property.  278;  i  Johns.  Ch.  450;  17  Johns.  548;  Roper  on  Husb. 
&  W.  182  ;  18  N.  Y.  265  ;  76  N.  Y.  267  ;  23  N.  Y.  529  ;  26  Ind.  428  ; 
49  Md.  402;  I  How.  U.  S.  311  ;  96  U.  S.  395  ;  20  N.  Y.  320;  71 
Penn.  St.  81  ;  14  N.  Y.  430;  76  N.  Y.  262;  3  N.  Y.  Sup.  Ct.  (T.  & 
C.)  574;  3  Hun,  519;  33  Am.  Rep.  266;  29  Ark.  202;  50  Miss. 
531. 


1 8  THE    LAW    OF    PARTITION. 

same  interest,  arising  by  the  same  conveyance,  com- 
mencing at  the  same  time,  and  held  by  one  and  the  same 
undivided  possession.  The  principle  incident  to  this 
estate  is  the  right  to  survivorship,  by  which,  upon  the 
death  of  one  joint  tenant,  the  entire  tenancy  remains  to 
the  surviving  co-tenant,  and  not  to  the  heirs  or  other 
representatives  of  the  deceased,  the  last  survivor  taking 
the  whole  estate.  It  is  an  estate  that  can  only  be  cre- 
ated by  the  acts  of  the  parties,  and  never  by  operation 
of  law.  The  policy  of  American  law  is  against  survivor- 
ship, and  in  many  States  it  is  abolished  by  statute.** 

In  Massachusetts  the  courts  have  held  that  where 
land  is  conveyed  to  two  in  a  mortgage  as  collateral  secu- 
rity for  a  joint  debt,  it  is  held  by  them  in  joint  tenancy, 
notwithstanding  the  statute  of  1795,  and,  upon  the  death 
of  either  mortgagee,  the  remedy  to  recover  the  debt 
would  survive,  and  the  survivor  could  recover.'^ 

The  presumption  in  most  of  the  United  States  is,  that 
all  tenants  holding  jointly  hold  as  tenants  in  common, 
unless  clear  intention  to  the  contrary  is  shown.®  In 
some  States  this  is  regulated  by  statutes.  Title  by  joint 
tenancy  has  been  much  reduced  in  extent  in  this  coun- 
try, and  the  incident  of  survivorship  is  almost  entirely 
destroyed  by  statutes.  There  are  exceptions,  where  such 
a  tenancy  is  a  necessity,  and  by  reason  of  the  necessity, 
the  court  is  bound  to  recognize  the  doctrine  of  joint  ten- 
ancy. For  instance,  in  case  of  legacies,  and  in  case  of 
trustees  and  executors,  joint  tenancy  is  a  necessity. 

^  Joint  tenancy.  See  16  Gray,  308  ;  7  Mass.  131  ;  2  Blacks. 
Com.  179;  2  Cruise  Dig.  48  ;  4  Kent,  358. 

^^  Appleton  V.  Boyd,  7  Mass.  131. 

e  6  Gray,  428;  5  Halst.  42;  2  Ala.  N.  S.  112  ;  i  Root,  148;  2 
Ohio,  306 ;  10  Ohio,  i  ;  1 1  S.  &  R.  191  ;  3  Vt.  543  ;  3  Md.  Ch.  Dec. 
547;  I  Greenl.  Cruise  Dig.  829;  i  Washb.  R.  P.  408. 


CO-TENANCY.  1 9 

At  common  law  an  estate  in  joint  tenancy  is  where 
lands  or  tenements  are  granted  to  two  or  more  persons 
to  hold  in  fee  simple,  fee  tail,  for  life,  for  years  or  at  Avill.^^ 
Each  joint  tenant  has  the  entire  possession  of  every 
parcel  and  the  whole.  It  is  a  unity  and  entirety  of 
interest.  The  interest  being  equal  and  similar,  also  one 
and  the  same,  the  survivor  takes  the  whole.  Joint 
tenants  have  one  estate  in  the  whole  and  no  estate  in 
any  particular  part.  Two  corporations  cannot  hold 
lands  as  joint  tenants.  Each  being  something  that 
cannot  die,  there  can  be  no  survivorship.^'  Nor  can  a 
corporation  hold  lands  as  a  joint  tenant  with  a  natural 
person.  Infants  may  be  joint  tenants,  and  a  child 
becomes  at  its  birth  a  joint  tenant  with  the  mother  of 
lands  which  the  latter  holds  in  special  tail.'*  As  a  gen- 
eral rule  co-trustees  are  joint  tenants,  and  a  conveyance 
to  a  trustee  for  the  use  and  benefit  of  two  or  more  per- 
sons vests  the  equitable  estate  in  the  cestuis  qjie  trust 
as  joint  tenants.'^  Each  joint  tenant  is  entitled  to  his 
share  of  the  rents  and  profits  as  between  his  co-joint 
tenants  during  his  life-time.  This  is,  however,  subject  to 
the  right  of  the  survivor  or  survivors  to  take  the  whole 
estate  at  his  death  to  the  total  exclusion  of  his  heirs  or 
personal  representatives.  One  tenant  cannot  devise  his 
property  by  will.  The  right  of  survivorship  being  the 
leading  feature  to  make  up  a  joint  tenancy,  at  death 
nothing  would  remain  to  the  estate  of  the  deceased  joint 
tenant  ;  therefore  the  will  would  be  inoperative  and  useless 

^^  4  Wait  Actions  &  D.  169. 
^^  De  Wilt  V.  San  Francisco,  2  Cal.  289. 
^''  Powell  V.  Powell,  5  Bush  (Ky.  )  619. 

''^  Webster  z/.  Vanventer,  6  Gray,  428 ;  Parsons  v.  Boyd,  20 
Ala.  113;  Greer  z/.  Blancher,  40  Cal.  194. 


20  THE    LAW    OF    PARTITION. 

SO  far  as  the  same  pertained  to  the  estate  in  joint  tenancy 
held  by  the  testator  in  his  Hfe-time.^^  One  joint  tenant 
cannot  bind  his  co-tenant  in  a  contract  for  the  sale  of 
the  joint  real  estate,  without  express  authority  from  the 
co-tenant,  anterior  to  the  contract,  or  a  complete  ratifi- 
cation of  the  contract  afterwards  by  his  said  co-tenant." 

Joint  tenants  must  join  in  an  action  for  the  recovery 
of  the  possession  of  land  jointly  held,  and  the  failure  to 
do  so  is  fatal  to  a  recovery/*  It  is  a  common-law  rule, 
that  for  any  thing  pertaining  to  land  held  in  common, 
joint  tenants  and  tenants  in  common  should  be  sued 
jointly  in  trespass  or  trover,  and  if  one  only  be  sued  he 
may  plead  the  joint  tenancy  in  abatement.  Ejectment 
will  lie  between  joint  tenants  in  the  case  of  actual 
ouster.^' 

An  alien  and  a  citizen  may  be  joint  tenants  :  but  the 
interest  of  the  alien  is  subject  to  escheat.^"  The  widow 
of  a  joint  tenant  is  not  entitled  to  dower.  The  survivor 
comes  in  by  a  paramount  title,  which  he  may  allege  that 
he  obtained  directly  from  the  grantor  without  naming  his 
companion." 

One  joint  tenant  cannot  charge  or  incumber  the 
estate  so  as  to  bind   the   other   who   survives  him.*"     In 

^®  I  Washb.  on  Real  Prop.  412  ;  Duncan  v.  Forser,  6  Binn. 
(Penn.)  193. 

^^  Hanks  v.  Enloe,  33  Tex.  624. 

^®  5  Bac.  Abr.  299,  Joint  Ten.   K ;  Dewey  v.  Lamber,  7  Cal. 

347- 

*^  Peaceable  7/.  Reed,  i  East,  568;  Bethel  z/.  McCool,  46  Ind. 
303 ;  Halford  v.  Tetherow,  2  Jones  (N.C.)393  ;  Noble  v,  McFarland, 
51  III.  226. 

*"  Coke  Lit.  180. 

*^  American  Law  Real  Prop.  786, 

*'  Id.  787. 


CO-TENANCY.   '  21 

Connecticut  one  joint  tenant  may  charge  his  share  with 
his  private  debts." 

The  common-law  rule  that  no  title  to  dower  attaches 
on  a  joint  seisin,  on  account  of  the  mere  possibility  that 
the  estate  may  be  by  survivorship,  does  not  prevail  in 
North  CaroHna,  South  Carolina,  Indiana  or  Kentucky,  or 
propably  any  other  States  where  ih&jus  accrescendi  or 
the  right  of  survivorship  has  been  abolished." 

Tenants  by  entirety.  In  common  law,  the  hus- 
band and  wife  are  considered  as  one  person,  and  can 
not  take  by  moieties,  as  joint  tenants,  each  an  undivided 
moiety  of  the  whole,  but  upon  a  conveyance  to  them, 
each  has  the  entirety.  They  are  seized  per  tout  and  not 
per  my.  And  the  husband  can  neither  forfeit  or  alien 
the  estate  so  as  to  bind  the  wife  after  his  death." 

In  Massachusetts,  it  has  been  held  that  tenancy  by 
entireties  is  essentially  a  joint  tenancy  as  modified  by  the 
common  law  doctrine  that  husband  and  wife  are  one 
person,  and  not  changed  by  the  statutes  enacting  that 
"  conveyances  and  devises  of  land  made  to  two  or  more 
shall  be  construed  to  create  estates  in  common  and  not 
in  joint  tenancy.  "  Statutes  enacted  to  enable  married 
women  to  take  and  hold  property  to  their  sole  and  sepa- 
rate use  do  not  in  terms  apply  to  an  estate  granted  to 
husband  and  wife  which  conveys  common  law  rights 
incapable  of  severance  ;  and,  construing  the  different  pro- 
visions of  the    statutes  in  relation  to  husband  and  wife 

*^  Remington  v.  Cady,  lo  Conn.  44. 

^^  Lit.  §  45  ;  Ind.  L.  183.  p,  290;  Reed  ■y.  Kennedy,  2  Strobh. 
67  ;  Wier  7/.  Fate,  4  I  red.  264  ;  3  Blackf.  133;  Davis  v.  Logan,  9 
Dana,  186;  4  Kent,  37  ;  Maybury  v.  Biien,  15  Pet.  21.  See  4 
Eng.  9. 

*■'"  I  American  Law  Real   Prop.  785. 


22  THE    LAW    OF    PARTITION. 

and  conveyances  by  married  women  with  reference  to 
each  other,  it  is  clear  the  Legislature  intended  that  this 
peculiar  tenancy  by  entireties  should  be  preserved  as  it 
existed  at  common  law.*" 

The  general  rule  in  respect  to  the  interest  of  partners 
in  lands  purchased  for,  and  appropriated  to,  partnership 
purposes  and  paid  for  with  partnership  funds  is  well 
settled.  Such  lands  are  partnership  assets.  This  is  so, 
even  if  the  title  is  taken  in  the  individual  names  of  the 
persons  composing  the  firm.  The  legal  effect  of  the 
deed  is  to  create  the  individuals  tenants  in  common  of 
the  lands.  Parol  proof  is  admissible  to  show  that  the 
lands  were  purchased  for  partnership  purposes,  and  paid 
for  with  partnership  funds.  In  that  case,  the  lands  are 
partnership  assets,  and  pass  to  the  survivor  as  personal 
property  would,  charged  with  the  liability  of  partnership 
property  to  pay  the  partnership  debts.*' 

'  Pray  ^.Stevens,  i  N.  Eng.  R.  521  ;  citing  13  Allen,  215  ;  108 
Mass.  254;  8  Ch.  App.  Cases,  192 ;  5  Mass.  522  ;  no  Mass.  273  ;  27 
Ch.  Div.  166 ;  92  N.  Y.  152  ;  49  Md.  402  ;  57  Ind.  412 ;  42  Miss,  i  ; 
64  Penn.  St.  39;  56  Penn.  St.  106  ;  25  Mich.  347  ;  29  Ark.  202  ;  50 
Miss.  531  ;  I  Dana,  242;  5  Halst.  42;  76  111.  57;  28  Iowa,  302;  56 
N.  H.  105  ;  34  N.  J.  L.  18  ;  15  Wend.  175  ;  5  Jones  (N.  C.)  L.  357  ; 
I  Burr.  176  ;  6  Ir.  C.L.  367-375  ;  i  Spencer,  556  ;  4  Sneed,  683. 

Also  see  12  Wend.  421  ;  37  Ind.  398;  19  Wis,  365  ;  i  Hi.l, 
569 ;  Hoff.  •]^  ;  I  Sandf.  Ch.  222  ;  10  N.  Y.  545  ;  76  N.  Y.  272 ;  3 
Hun,  520;  II  Hun,  535;  31  Barb.  320;  49  Barb.  162;  5  T.  &  C. 
569:  6  How.  Pr.  234;  45  Am.  Dec.  390;  27  Am.  Rep.  308 ;  65  Mo. 
679  ;  9  Abb.  Pr.  447  ;  4  Bos.  294;  37  Ind.  400;  11  Conn.  337;  3 
Hamm.  305  ;  16  Johns.  115:8  Cow.  283 ;  15  Wend.  615  ;  5  N.  H. 
416;  2  Cow.  439  ;  3  Rand.  179  ;  12  East,  57  ;  10  Johns.  49  ;  4  Bibb, 
241. 

*^  Leary?/,  Boggs,  i  N.  Y.  S.  Rep.  571,  citing  24  N.  Y.  505; 
49  Id.  47  ;  64  Id.  471. 


CHAPTER  III. 

WHO  MAY  PARTITION.     PARTIES. 

General  principles.  The  principles  and  policy  of 
the  law  is  that  estates  held  in  joint  tenancy,  in  common, 
or  by  co-parceners  can  be  partitioned  among  those 
having  an  interest  in  them.  In  Connecticut  joint  ten- 
ants, tenants  in  common  and  co-parceners  may  be  com- 
pelled to  partition  by  writ.^  And  in  New  Jersey  by  writ 
as  at  common  law,  and  by  bill  in  chancery  and  by 
commissioners  duly  appointed."  Under  the  New  York 
statute  the  proceedings  in  partition  cannot  be  instituted 
but  by  a  party  who  has  an  estate  entitling  him  to 
immediate  possession.^  If  such  a  disability  exist  it 
should  as  a  defense  be  set  up  in  the  answer,  but  if  there 
has  been  an  omission  to  plead  it,  it  may  be  taken  advan- 
tage of  at  the  trial  under  the  plea  of  non  tenant  insimul. 
This  is  provided  for  by  section    1532^  of  the    New    York 

^  Statutes  1838,  p.  392. 

2  N.  J.  R.  S.  1847. 

^  Brownell  v.  Brownell,  19  Wend.  367  ;  citing  9  Cow.  561-573. 

■  1532.  Where  two  or  more  persons  hold  and  are  in  posses- 
sion of  real  property,  as  joint  tenants  or  as  tenants  in  common, 
in  which  either  of  them  has  an  estate  of  inheritance,  or  for  life 
or  for  years,  any  one  or  more  of  them  may  maintain  an  action 
for  the  partition  of  the  property,  according  to  the  respective 
rights  of  the  persons  interested  therein  :  and  for  a  sale  thereof,  if 
it  appears  that  a  partition  thereof  cannot  be  made  without  great 
prejudice  to  the  owners. 

[23] 


24  THE    LAW   OF    PARTITION. 

Code  of  Civil  Procedure.  A  cestui  gtie  trust  cannot  main- 
tain an  action  for  the  partition  of  real  estate,  and  a  pur- 
chaser at  a  sale,  had  under  a  judgment  therein,  cannot 
be  made  to  complete  his  purchase,  even  though  the 
trustees  were  made  parties  defendant.*  An  estate  vested 
in  trustees  will  remain  inviolate,  and  the  person  for  Avhom 
the  trust  is  held  is  entitled  to  enforce  the  performance 
of  the  trust. 

A  remainderman  or  a  reversionei  may  be  made  party 
defendant  in  an  action  for  partition.  He  cannot  insti- 
tute the  action,  at  least  against  others  not  seized  of  a 
like  estate  in  common  with  them.  The  right  is  only 
given  to  one  having  actual  or  constructive  possession  of 
the  lands  sought  to  be  partitioned.  A  remainderman 
has  neither.^ 

Possession  of  premises  so  as  to  allow  the  bringing  of 
an  action  of  partition  is  presumed  from  the  allegation  of 
the  complaint  that  the  parties  are  seized  as  tenants  in 
common,  and  it  has  been  quite  well  settled  that  the 
seizin  of  one  tenant  in  common,  who  does  not  deny  the 
title  of  his  co-tenant,  is  the  seizin  of  all  ;  and,  where 
there  is  no  adverse  possession,  the  entry  of  one  co- 
tenant  is  the  possession  of  all.  The  possession  of  one 
is  the  possession  of  all,  and  constructive  possession  is 
sufficient  to  constitute  the  unity  of  the  right  of  posses- 
sion required  in  a  tenancy  in  common.* 

*  Harris  v.  Larkins,  22  Hun,  488  ;  citing  70  N.  Y.  136 ;  56  N. 
Y.  226  ;  37  N.  Y.  59  ;  17  N.  Y.  210  ;  15  N.  Y.  617. 

^  Sullivan  v.  Sullivan,  66  N.  Y.  37,  reversing  4  Hun,  198  ; 
citing  Litt.  R.  300 ;  19  Wend.  367  ;  9  Cow.  530;  2  Barb.  Ch.  398  ; 
46  N.  Y.  184  ;  59  Id.  426;  15  Id.  617  ;  2  Kern.  519;  2  Blacks.  Com. 
161  ;  II  Vt.  129. 

"  Jenkins  v.  Van  Schaack,  3  Paige,  242  ;  Burnhans  v.  Burn- 
hans,  2  Barb.  Ch.  398;  Shumway  v.  Holbrook,  i  Pick.  114; 
Thomas  v.  Hatch,  3  Sum.  170;  Putnam  v.  Ritche,  6  Paige,  398. 


WHO    MAY    PARTITION.  25 

To  maintain  an  action  for  the  partition  of  lands,  the 
plaintiff  must  have  either  actual  or  constructive  posses- 
sion, in  common  with  his  co-tenants.  A  subsisting  adverse 
possession  is  an  absolute  bar.  The  possession  of  one  of 
several  tenants  in  common  may  become  adverse,  when 
his  acts  amount  to  an  exclusion  of  his  co-tenants,  and 
until  the  excluded  parties  in  a  lawful  way  regain  their 
possession,  a  partition  cannot  be  had.'^  The  common 
law  rule  was  :  "  If  one  coparcener  disseized  another,  dur- 
ing the  disseizin  a  writ  of  partition  would  not  lie  between 
them."^  Possession  usually  follows  the  legal  title  when 
no  adverse  possession  is  shown. ^  Possession  is  presumed 
to  follow  title. 

The  wife  must  be  made  a  party.  She  has  an  inchoate 
right  of  dower  in  the  lands  owned  by  her  husband,  and 
she  must  be  either  plaintiff  or  defendant  in  the  action. 
The  court,  before  it  will  order  a  sale  of  land  in  partition, 
requires  that  all  those  that  have  an  interest  in  them  shall 
be  made  parties  to  the  action,  to  the  end  that  the  pur- 
chaser may  get  a  perfect  title.  Hence  the  wives  of  those 
entitled  to  the  land  should  be  made  parties.  i° 

Statutes  have  been  enacted  in  most  States  governing 
partition  cases.  There  are  a  great  variety  of  cases  in 
which  a  court  of  equity  must  step  in  and  supply  the 
defects  or  omissions  of  the  statutes.  Many  of  the  ques- 
tions are  complicated,  as  to  the  easements,   enjoyment, 

■^  Florence  7t.  Hopkins,  46  N.  Y.  182,  citing  9  Cow.  530;  19 
Wend.  369  ;  14  N.  Y.  235  ;  Hoff.  560. 

Adverse  possession.  12  Wend.  602  ;  9  Id.  512  ;  22N.Y.  170; 
4  Wend.  558  ;  20  N.  Y.  400  ;  20  Id.  147  ;  26  Id.  338  ;  4  Mason,  534, 

8  Coke  Litt.  167,  b  ;  16  Viner,  225,  Partition,  i. 

9  Beebe  t/.  Griffing,  14  N.  Y.  235  ;  see  5  Denio,  385  ;  Deady, 
365  ;  22  Mich.  65. 

1^  Knapp  V.  Hungerford,  7  Hun,  588. 


26  THE    LAW    OF    PARTITION. 

constructive  possession,  and  antagonistic  claims,  where, 
notwithstanding  the  statutes,  the  interposition  of  a  court 
of  equity  is  indispensable  to  the  proper  adjustment  of  the 
rights  of  the  parties. 

In  Massachusetts  and  Maine  the  writ  of  partition  at 
common  law  is  not  only  given,  but  partition  may  be 
effected  without  writ."  The  petition  in  Massachusetts 
may  be  addressed  to  the  court  of  common  pleas,  or  the 
supreme  judicial  court.  The  probate  court  may  also 
award  partition  as  between  heirs  and  devisees.  In  Con 
necticut,  New  Jersey,  Ohio,  Illinois,  and  Georgia,  and  in 
probably  most  of  the  other  States,  partition  of  lands  in 
joint  tenancy,  tenancy  in  common,  or  coparcency,  may  be 
effected  by  petition  to  the  courts  at  law.  In  Connecticut, 
the  court  of  probate  has  jurisdiction  to  order  partition  in 
the  case  of  minors,  for  reasonable  cause. ^"  In  Indiana 
courts  of  law  and  courts  of  equity  have  concurrent  juris- 
diction in  partition."  A  very  easy  mode  of  partition  has 
been  established  in  Missouri,  by  petition  to  the  circuit 
court."  New  Jersey,  in  1797,  embodied  the  substance  of 
the  English  statutes  of  31  &  32  Hen.  VIII.  It  was 
the  ancient  doctrine,  under  the  statutes  of  Henry  VIII., 
that  no  persons  could  be  made  parties  to  a  writ  of  par- 
tition, or  be  affected  by  it,  but  such  as  were  entitled  to 
the  present  possession  of  their  shares  in  severalty  ;  they 
must  be  joint  tenants,  or  tenants  in  common  in  their  own 
or  their  wives'  right,  or  tenants  for  life  or  years." 

11  Mussey  v.  Sanborn,  15  Mass.  155  ;  Cook  v.  Allen,  2  Id.  462  ; 
Act  Maine,  1821. 

12  Statutes  of  Conn,  1838,  pp.  331-392  ;  Statutes  of  Ohio,  1831, 
p.  254;  R.  L.  111.  1833;  Prince's  Digest  Statutes  of  Georgia,  1837, 
p.  451. 

13  Ind.  Statutes,  1831.  .     11  Mo.  R.  S.  1835. 
15  Stevens  v.  Enders,  i  Green,  271. 


WHO    MAY    PARTITION.  2  7 

Partition  of  personal  property.  The  partition 
of  personal  property  is  unknown  at  common  law,  but  a 
bill  in  equity  may  be  maintained  for  that  .  purpose."^ 
Adverse  possession  is  a  bar  to  the  bill.'"  When,  how- 
ever, in  a  suit  for  partition  of  personal  property,  the  de- 
fendant denies  that  the  plaintiff  is  a  tenant  in  common, 
and  sets  up  a  title  to  the  property  in  himself,  in  severalty, 
the  plaintiff  is  not  obliged  to  establish  his  title  by  action 
at  law,  but  the  title  may  be  tried  in  the  partition  suit.'* 
A  court  of  equity  may  distribute  among  the  heirs  at  law 
their  respective  shares  of  an  estate." 

Who  may  claim  partition.  Tenants  in  common 
and  joint  tenants  have  an  absolute  right  to  the  division 
of  land  held  by  them  in  common  or  in  joint  tenancy, 
and,  if  a  partition  cannot  be  had,  to  a  sale  and  division  of 
the  proceeds.  The  general  doctrine  respecting  partition 
is  that  a  tenant  in  common  of  the  inheritance  may  main- 
tain partition,  notwithstanding  a  particular  estate  is  stil 
outstanding.  Partition  as  aforesaid  is  a  matter  of  right 
by  the  common  law,  as  well  as  by  the  statute.  Where 
both  or  either  of  the  parties  will  not  consent  to  hold  and 
use  the  property  in  common,  and  where  a  sale  is  for  the 
best  interest  of  all  parties  concerned,  a  sale  will  be  had 
and  the  proceeds  divided.-" 

16  Marshall  v.  Crow,  29  Ala.  278;  Irvin  v.  Kind,  6  Ired.  219; 
Steedman  z^.  Weeks,  2  Strobh.  Eq.  145;  Savage  v.  Williams,  15 
La.  250. 

1"  Drew  V.  Clemens,  2  Jones,  212. 

18  Smith  z/.  Dunn,  27  Ala.  315. 

19  Bethen  v.  McCall,  5  Ala.  308;  Vanderveer  7'.  Alsten,  16  Id. 
494. 

20  Smith  V,  Smith,  10  Paige,  470;  Potter  7'.  Wheeler,  13  Mass. 
504;  Scovil  V.  Kennedy,  14  Conn.  349;  Bradshaw  7/.  Callaghan,  8 
Johns.  558;    Holmes  v.  Holmes,  2  Jones  Eq.  334;    Campbell  z/. 


28  THE    LAW    OF    PARTITION. 

Where  lands  leased  for  a  term  of  years  are  owned  by 
several  persons  as  tenants  in  common  both  of  the  rents 
and  of  the  reversion,  a  bill  for  partition  may  be  sustained; 
but  a  sale  of  the  lands,  under  the  decree  in  partition, 
must  be  made  subject  to  the  rights  of  lessees,  who  will 
then  become  the  tenants  to  the  purchaser  of  the  rents 
and  reversion.^^  A  partition  may  be  obtained  by  an 
assignee  under  the  general  assignment  act,^*  or  by  a 
tenant  by  the  courtesy,"'  or  by  a  devisee  of  a  life 
estate.^*  In  one  case  it  was  decreed,  where  plaintiff 
was  an  owner  in  fee  of  an  undivided  share  of  mines  and 
minerals  on  and  in  the  premises  with  power  to  go  on  the 
land  and  work  such  mines,  and  defendant  was  the  owner 
in  fee  of  the  residue  of  the  estate  and  interest  in  the 
premises,  a  partition  could  be  had.""  A  trustee  of  lands 
under  a  trust  to  receive  the  rents  and  profits  and  apply 
them  to  the  use  and  support  of  an  infant  during  its 
minority,  with  absolute  power  in  the  trusteeship  to 
sell  the  lands  and  invest  the  proceeds,  may  maintain  an 

Love,  9  Md.  500;  Higgenbottom  v.  Short,  25  Miss.  160.  See  Co. 
Litt.  131;  Stat.  31  Hen.  VIIL;  i  Salk.  312;  4  Burr.  2021  ;  9  Cow. 
530;  15  Johns.  319;  5  Id.  80;  9  Cow.  565;  i  Sand.  Ch.  200;  i  Barb. 
564;  2  N.  Y.  Leg.  Obs.  408  ;  12  Johns.  434;  5  Wend.  341  ;  16  Id.  52; 
6  N.  Y.  89 ;  4  Rob.  606  ;  38  Ind.  428  ;  7  Lans.  196  ;  4  Hun,  199 ;  36 
N.  Y.  499;  4  Id.  257;  47  Id.  467;  73  Id.  355;  34  Id.  536  ;  3  Fairf. 
146  ;  8  Ves,  143 ;  13  Pick.  236  ;  i  Aikens,  67  ;  5  N.  H.  1 34 ;  2  Blant 
Amb.  589;  I  P.  Wms.  446;  3  Younge  &  C.  540;  10  Conn.  44; 
4  Kent,  364  ;  2  Atk.  380;  2  Vern.  232  ;  24  Conn.  230  ;  i  Hoff.  Ch. 
21  ;  9  Cow.  569 ;  22  Wend.  498  ;  7  Paige,  386  ;  Preston  on  Estates, 
I,  138  ;  46  N.  Y.  184;  59  Id.  426. 

21  Wood  worth  v.  Campbell,  5  Paige,  518. 

22  Van  Arsdale  v.  Drake.  2  Barb.  599. 

23  Riker  V.  Darker,  4  Edw.  688. 

'^  Ackley  v.  Dygert,  33  Barb.  176. 

'•^^  Cantield  v.  Ford,  16  How.  Pr.  473;  28  Barb.  336. 


WHO    MAY     PARTITION.  29 

action  for  partition.-"  And  a  tenant  in  common,  who  is 
also  trustee  in  part  for  the  others,  may  sue  for  partition.-' 
Where  an  administrator  advances  from  his  own  funds 
money  to  complete  the  purchase  of  land  made  by  his 
intestate,  and  takes  the  title  in  his  own  name  as  security 
for  the  money  so  advanced  by  him,  an  action  of  partition, 
to  which  he  and  the  heirs  and  widow  are  parties,  is  main- 
tainable." And  an  heir  of  a  deceased  intestate  can 
maintain  an  action  for  partition,  notwithstanding  an 
agreement,  signed  by  herself  and  the  other  heirs  and 
widow,  to  abide  by  and  consent  to  the  provisions  of  an 
unexecuted  will.  Such  agreement  being  void,  there 
being  no  consideration."^  Where  an  estate  in  fee  of  one 
undivided  half  of  certain  premises,  and  a  life  estate  in  the 
other  undivided  half  of  the  same,  with  remainder  over  in 
fee  to  the  heirs  of  the  devisee  of  the  life  estate,  are 
united  in  the  same  person,  who  conveys  the  same,  in  fee, 
in  parcels,  from  time  to  time,  expressly  excepting  the 
prior  from  the  operation  of  the  subsequent  conveyance  : 
upon  application,  after  the  decease  of  the  devisee  for  life, 
of  one  of  the  remaindermen  of  the  life  estate  for  a  parti- 
tion of  the  estate,  according  to  the  terms  of  the  devise, 
effect  will  be  given  to  the  earlier  as  against  the  latter 
conveyances,  so  as  to  secure  to  the  holders  under  the 
former,  so  far  as  practicable,  their  titles  in  fee.  And 
where,  in  such  case,  a  partition  is  found  impracticable, 
and   a    sale  is  decreed,  the  lands  must  be  sold  in   the 

2C  Gallic  V.  Eagle,  65  Barb.  583. 

27  Cheesman  71.  Thorn,  i  Edw.  629. 

-'^  Herbert  v.  Smith,  6  Lans.  493. 

2^*  Elderkin  v.  Rovvcll,  42  How.  330 ;  citing  i  Wait,  86 ;  40 
How.  Pr.  452  ;  I  N.  Y.  581  ;  2  Barb.  420  ;  10  Id.  308  ;  12  liarb.  685  ; 
13  Johns.  257  ;  24  Wend.  97  ;  12  Johns.  190;  7  Barb.  590  ;  Story 
Com.  §  429;  Pars.  Cont.  357  ;  18  Johns.  145  ;  3  N.  Y.  93. 


-^O  THE    LAW    OF    PARTITION. 

inverse  order  of  alienation,  and  the  proceeds  of  the  sale 
must  be  distributed  to  the  remaindermen,  after  the  life 
estate,  and  their  grantees,  upon  the  basis  of  the  actual 
value  of  the  whole  premises  (exclusive  of  buildings),  and 
not  upon  an  assumed  equality  in  the  value  of  the  unsold 
portions.  There  must  be  actual  or  constructive  posses- 
sion upon  the  part  of  the  plaintiff  before  he  can  maintain 
an  action  of  partition,  and  a  knowledge  of  all  the  facts 
out  of  which  legal  or  equitable  rights  arise  in  favor  of 
another,  is  a  full  knowledge  of  those  rights/" 

Where  one  has  a  present  interest  per  autre  vie,  in  an 
undivided  portion  of  lands,  and  a  contingent  remainder 
in  fee  in  an  undivided  part,  he  is  entitled  to  a  partition; 
and,  if  actual  partition  or  division  of  the  lands  cannot  be 
had  under  the  rules,  it  should  be  sold  and  the  proceeds 
divided.  Under  the  New  York  statutes,  all  persons  hav- 
ing an  estate,  present  or  future,  vested  or  contingent, 
should  be  made  parties." 

When  it  is  practicable  and  for  the  best  interest  of  all 
concerned,  the  land  should  be  divided,  and  any  co- 
tenant  may  claim  an  actual  partition  or  division  of  the 
land.^^  Land  left  by  will  to  two  or  more  persons,  upon 
condition  that  it  shall  be  improved,  is  subject  to  partition, 
and  any  owner  may  bring  the  action  ;  the  division  of  the 

30  WarfieldT/.  Crane,  4  Keyes,  448  ;  citing  14  Johns.  354;  9 
Cow.  530  ;  I  Johns.  Ch.  1 1 1  ;  4  Wend.  277 ;  2  Harg.  &  Johns.  431  ; 
364  ;  3  Denio,  485  ;  3  Hill,  165  ;  2  Johns.  Cas.  384 ;  2  Denio,  336  ; 
4  Johns.  Ch.  271  ;  5  Barb.  51  ;  3  Barb.  Ch.  608  ;  3  Paige,  470,  545  ; 
17  N.  Y.  125  ;  18  Id.  575  ;  24  Id.  517  ;  22  Id.  425  ;  26  How.  Pr.  170; 
16  Abb.  Pr.  413 ;  37  Barb.  97  ;  27  Id.  187  ;  15  How.  Pr.  14  ;  36  N. 
Y.  561  ;  34  Id.  383. 

3iBrevart  v.  Dorothea,  70  N.  Y.  136;  citing  10  Paige,  473;  6 
Sim.  643;  17  Ves.  533;  2  N.  Y.  19;  15  Id.  617;  56  Id.  226;  i 
Edw.  Ch.  629  ;  17  N.Y.  210 ;  37  Id.  59  ;  7  Paige,  544,   See  4  Ala.  475. 

32  Lucas  V.  Peters,  45  Ind.  313. 


WHO    MAY    PARTITION.  3 1 

ownership  or  fee  does  not  affect  the  right  to  improve  the 
land  in  common.^ 

The  wife  having  an  inchoate  right  of  dower  must  be 
joined  with  her  husband  as  plaintiff.^  A  tenant  by  the 
courtesy  initiate  may  maintain  an  action  of  partition.'^  A 
guardian  of  a  minor  who  is  a  tenant  in  common  may 
maintain  an  action  of  partition.^^  When  suit  for  parti- 
tion is  brought  by  a  committee  of  a  habitual  drunkard,  or 
of  a  lunatic,  the  lunatic  or  drunkard  should  be  joined  as 
plaintiff^^  A  person  who  has  a  written  contract  with  a 
tenant  in  common  of  real  estate,  for  the  purchase  of  his 
undivided  share,  and  has  paid  a  portion  of  the  purchase 
money,  has  an  equitable  estate  which  entitles  him  to  an 
action  for  partition.^  A  purchaser  of  an  interest  of  a 
devisee  has  the  same  right.^  So  may  the  grantee  of  a 
widow's  right  of  dower  maintain  the  action.^  Where 
one  tenant  conveys  to  another  his  undivided  interest  in. 
the  estate,  retaining  the  life  use  of  the  premises,  the 
grantee  cannot  partition."  It  has  been  held  that  one 
partner  coifld  maintain  an  action  of  partition  of  the 
partnership  lands,  against  the  others,  though  the  terms 
of  the  partnership  had  not  been  fulfilled.^  The  heirs  of 
a  deceased  person,  in  case  they  have  not  parted  with 
their  interest  in  the  estate,  are  the  proper  parties  to  a  suit 

33  Richardson  7a  Merrill,  21  Me.  47. 
3^R  apple  V.  Gilbor,  8  How.  Pr.  456. 
35  Riker  v.  Darker,  4  Edw.  Ch.  668. 

3CZirkle  v.  McCue,  26  Gratt.  517.  See  24  Mo.  252;  27  Id. 
302  ;  4  Sandf.  Ch.  508. 

37Gorham  v.  Gorham,  3  Barb.  Ch.  24. 

3^  Langwell  v.  Bently,  23    Penn.  St.  99. 

3«  Stewart's  Appeal,  56  Penn.  St.  241.     See  18  Cal.  96. 

^  Morgan  v.  Staley,  1 1  Ohio,  389. 

41  Nichols  V.  Nichols,  28  Vt.  228. 

^  Collins  z/.  Dickinson,  i  Hayw.  240. 


32  THE    LAW    OF    PARTITION. 

for  the  partition  of  real  property.*^  Although  a  tenant 
for  life  may  not  maintain  partition,  because  not  a  joint 
tenant  or  tenant  in  common  with  the  remainderman, 
yet  the  defect  is  not  jurisdictional,  and  a  decree  of  sale  in 
such  an  action  is  not  absolutely  void.  It  may  only  be 
corrected  on  appeal,  and  the  sale  is  good  as  against 
those  made  parties  to  the  action.**  This  seems  to  be  an 
exception  to  the  general  rule,  which  is  that  the  plaintiff 
must  be  a  tenant  in  common  or  a  joint  tenant  and  that 
he  must  have  an  interest  in  all  the  lands  sought  to  be 
partitioned.*'  Section  451  of  the  New  York  Code  applies 
to  actions  of  partition.*® 

A  remainderman  is  one  who  is  entitled  to  the 
remainder  of  the  estate  after  a  particular  estate  carved 
out  of  it  has  expired.*^  As  for  instance,  one  leaves  his 
estate  to  his  widow  to  have  and  to  hold  during  her 
natural  life,  and  at  her  death  to  his  children.  After  the 
life  estate  has  been  taken  out,  the  children  have  the 
remainder,  and  they  are  tenants  in  common,  or  joint 
tenants,  as  the  case  may  be,  in  such  remainder,  and  they 
can  petition  among  themselves  as  tenants  in  common  or 
joint  tenants  of  such  remainder,  but  in  most  States  they 
cannot  disturb,  and  the  courts  will  protect  the  life-estate. 

A  reversion  is  the  residue  of  an  estate  left  in  the 
grantor,  to  commence  in  possession  after  the  determina- 
tion of  some  particular  estate  granted  out  by  him.     The 

*3  Van  Werwerker  v.  Van  Derwerker,  7  Barb.  24. 

4^  Cromwell  7/.  Hull,  97  N.Y.  209;  citing  15  N.  Y.  617  ;  56  Id. 
226;  66  Id.  40.  See  22  Hun,  488;  15  Johns.  319;  46  N.  Y.  182; 
63  Id.  276;  70  Id.  254;  13  Week.  Dig.  150. 

45Manolt  V.  Brush,  3  Law  Bull.  66;  19  Daily  Reg.  No.  137. 

46  Bergen  -v.  Wyckoff,  84  N.  Y.  659.  See  11  Week.  Dig.  295  ; 
61  How.  Pr.  149. 

47  Bouv.  Law  Diet.  532. 


WHO    MAY    PARTITION.  33 

return  of  land  to  the  grantor  and  his  heirs  after  the  grant 
is  over.  The  reversion  is  a  vested  interest  or  estate,  and 
arises  by  operation  of  law  only.  In  this  latter  respect,  it 
differs  from  a  remainder,  which  can  never  arise  except  by 
will  or  deed.  Some  of  the  incidents  attached  to  reversion 
were  derived  from  the  feudal  constitution  The  return  of 
the  estate  is  a  feudal  principle.  The  reversion  arises  by 
the  operation  of  the  law,  and  it  is  a  vested  interest  or 
estate,  inasmuch  as  the  person  entitled  to  it  has  a  fixed 
right  of  future  enjoyment.  It  may  be  conveyed,  either 
in  whole  or  in  part.  One  learned  jurist  says  :  *'  It  is 
more  usual  to  pass  a  reversion  by  lease  and  release  or 
bargain  and  sale."" 

The  practice  of  hiring  land  for  a  limited  time  and  pay- 
ing rent  to  the  owner  of  the  soil,  was  known  in  the  Roman 
law,  but  was  regulated  in  the  Hindoo  code,  as  one  of  the 
incidents  to  a  reversion. 

The  disseizin  of  the  tenant  of  a  particular  estate,  and 
occupation  under  it,  however  long  continued,  will  effect 
the  right  of  the  reversioner.^  Even  where  a  tenant  for 
life  attempts  to  convey  the  estate  in  fee  adverse  posses- 
sion does  not  commence  until  the  death  of  such  life-ten- 
ant." If  the  tenant,  during  his  term,  remove  and  take 
away  from  the  freehold  any  part  thereof  which  he  is  not 
entitled  to  remove,  the  owner  of  the  reversionary  interest 
may  sustain  an  action  for  injury  to  his  interest." 

^  2  Preston  on  Abst.  85. 

*^  Jackson  v.  Shoemaker,  4  Johns.  390.  See  6  Cush.  34 ;  29 
Mo.  176. 

^  Gernet  v.  Lynn,  31  Penn.  St.  94. 

*■?  On  general  principles  of  reversion,  see  4  Mees.  &  W.  409; 
19  Penn.  St.  71  ;  7  Ired.  (N.  C.)  Eq.  296;  i6  Ves.  173;  53  Ind.  130; 
Co.  Litt.  142;  4  Kent,  354;  Gentoo  Code  by  Holhed,  153;  Litt. 
§§  567,  568  ;  7  C.  &  B.  243;  Cruise  Digest,  tit.  28,  c.  r.  §  65  ;  i  T.  & 
R.  378  ;  3  Met.  76  ;  i  Salk.  384  ;  2  Wils.  49  ;  4  Mod.  i  ;  4  Bro.  P. 
3 


34  THE    LAW    OF    PARTITION. 

There  has  been  a  conflict  as  to  the  construction  of 
former  statutes  in  New  York  relative  to  the  remainderman 
and  reversioner,  but  the  York  Code,  by  section  1533,*  set- 
tles all  conflict  of  law,  and  of  the  construction  of  the  law 
upon  that  subject.  In  a  partition  between  tenants  in  com- 
mon of  a  vested  reminder  or  reversion,  if  it  appears  that 
an  actual  partition  can  not  be  had  without  great  prejudice, 
the  court  must  direct  that  the  complaint  be  dismissed.  If 
the  owner  of  the  prior  estate  should  consent,  it  is  doubt- 
ful if  the  court  would  then  have  jurisdiction  to  direct  a 
division  of  the  land.  It  certainly  could  not  do  so  if  there 
were  infant  parties  to  the  action  and  the  value  of  the  prior 
owner's  estate  could  not  be  accurately  determined.  ^^ 

A  remainderman  cannot  compel  present  partition  and 
sale  of  real  estate,  while  the  life  tenant  is  living ;  he  must 

C.  594;  125  Mass.  157;  2  Blacks.  Com.  175;  i  Washb.  R.  P.  37, 
47;  25  Wend.  456;  8  Paige,  392;  5  Duer,  494 ;  35N.Y.  393;  12 
How.  Pr.  I  ;  i  Abb.  Pr.  466  ;  13  Wend.  608  ;  6  Rob.  544;  2  Hilt.  4; 
19  Barb.  145  ;  27  Id.  104.  On  remainders,  see  2  Johns.  288  ;  4  Id. 
61;  lold.  12;  16  Id.  537;  5  Cow.  371  ;  8  Id.  543;  2  Hill,  554;  2 
Den.  9  ;  2  Edw.  231  ;  7  Paige  70  ;  10  Hun,  328  ;  39  Barb.  386  ;  i 
N.  Y.  491  ;  41  Id.  66  ;  43  Id.  303  ;  50  Id.  161  ;  61  Id.  638  ;  4  Keyes, 
569 ;  38  How.  Pr.  483  ;  8  Abb.  Pr.  N.  S.  37  ;  4  Abb.  App.  Dec. 
108  ;  2  Abb.  N.  Cas.  404  ;  i  Redf.  392  ;  3  T.  &  C.  557  ;  67  N.  Y.  133. 
•§1533,  Id.;  by  remainderman.  Where  two  or  more 
persons  hold,  as  joint  tenants  or  as  tenants  in  common,  a  versted 
remainder  or  reversion,  any  one  or  more  of  them  may  maintain 
an  action  for  a  partition  of  the  real  property  to  which  it  attaches, 
according  to  their  respective  shares  therein,  subject  to  the  inter- 
est of  the  person  holding  the  particular  estate  therein.  But  in 
such  an  action  the  property  cannot  be  sold,  and  if  it  appears,  in 
any  stage  thereof,  that  partition  cannot  be  made,  without  great 
prejudice  to  the  owners,  the  complaint  must  be  dismissed.  Such 
a  dismissal  does  not  affect  the  right  of  any  party  to  bring  a  new 
action,  after  the  determination  of  the  particular  estate.  See  19 
Wend.  367;  66  N.  Y.  37  ;  15  Id.  617  ;  7  Lans.  193;  3  N.  Y.  355. 

^'  Scheu  V.  Lehning,  31  Hun,  183 ;  citing  86  N.  Y.  580 ;  77  Id. 
518. 


WHO    MAY    PARTITION.  35 

have  the  assent  of  the  hfe  tenant  to  entitle  him  to  the 
remedy.     There  must  be  an  estate  in  possession.  " 

Tenants  for  Hfe  in  possession  may  have  partition  as 
between  themselves  and  all  persons  entitled  to  the  rever- 
sion or  remainder ;  and  all  who  may  be,  or  who  may  be- 
come entitled  to  any  beneficial  interests  in  the  lands, 
may  be  made  parties  to  the  action  or  proceedings.  A 
judgment  in  partition  is  conclusive  on  all  having  any 
interest  who  are  made  parties. "^^ 

Between  tenants  in  common  partition  is,  in  equity,  a 
matter  of  right  and  not  of  discretion,  whenever  either  of 
them  will  not  hold  or  use  the  property  in  common. 
Courts  of  equity  have  concurrent  jurisdiction  with  courts 
of  law  in  all  cases  of  the  partition  of  lands  among  tenants 
in  common.  Legal  and  clear  title  must  be  shown  by  the 
complainant.^* 

Where  an  undivided  moiety  of  lands  was  vested  in  A,, 
B  and  C  as  trustees  of  a  settlement  which  expressly 
authorized  a  partition,  and  the   other  moiety  was  vested 

^^  Hughes  V.  Hughes,  63  How.  Pr.  408  ;  citing  15  N.  Y.  617;  56 
N.  Y.  225  ;  66  Id.  37  ;  85  N.  Y.  57  ;  also  see  11  Abb.  N.  C.  yj  >  jO 
Hun,  349;  2  McCarthy  C.  P.  100;  2  Browne  C.  P.  139. 

5^  Jenkins  7/.  Fahey,  73  N.  Y.  355;  citing  53  N.  Y.  233;  i  Paige, 
244;  5  Id.  235;  6  Hill,  415;  13  Barb.  50;  2  Hill.  380;  3  Kent  Com. 
401  ;  2  Cow.  497  ;  4  Mas.  467  ;  2  Den.  9;  i   N.  Y.  491  ;  4  Hill,  92 
67  N.  Y.  533. 

5*  Nash  V.  Simpson,  i  New  Eng.  R.  699;  citing  100  Mass. 
341;  I  Wash.  Prop.  78;  75  Me.  512;  3  Allen,  364;  68  Me.  137;  72 
Me.  146;  128  Mass.  575;  52  N.  H.  267;  i  New  Eng.  R.  20;  76  Me. 
527;  8  Met.  424,  430;  68  Me.  135;  113  Mass.  197,  199;  17  Ves. 
533;  12  Maine,  142;  35  Id.  107;  50  Id.  253;  62  Id.  112;  33  Vt.  195; 
I  Story  Eq.  §  655  ;  2  Atk.  380;  Amb.  236;  4  Rand.  74;  i  Johns. 
Ch.  hi;  3  Id.  302 ;  3  Ired.  Eq.  209  ;  3  Rand.  361  ;  13  111.  95  ;  54 
Am.  Dec.  427;  i  Green  Ch.  384 ;  60  Barb.  178;  71  Mo.  100;  14  Tex. 
69  ;  28  Id.  38 3-41 3  ;  106  U.  S.  679.  690 ;  3  Cliff.  523 ;  100  U.  S.  564 ; 
102  Id.  647,  649 ;  U.  S.  R.  S.  §  5057. 


36  THE     LAW    OF     PARTITION. 

in  D,  E  and  F  as  trustees  of  a  settlement,  with  power  to 
sell,  dispose  of,  convey,  and  assign  the  said  heredita- 
ments for  such  a  price  in  money,  or  for  such  an  equivalent 
or  recompense  in  lands  and  hereditaments  as  to  the 
trustees  should  seem  reasonable,  and  for  that  purpose  to 
revoke  the  old  uses  and  to  limit  other  uses  and  trusts,  and 
a  partition  deed,  purporting  to  be  in  exercise  of  the  said 
powers,  was  executed  by  the  trustees  of  the  two  moieties, 
D,  E  and  F  had  power  to  partition,  and  partition  between 
any  number  of  persons  might  properly  be  effected  under 
similar  power.  ^^ 

**  Frith  V.  Osborne,  i8  Moak  Eng.  724;  citing  Shep.  Touch. 
292;  4  Bro.  C.  C.  278;  II  Ves.  467,  2  Ex.  752;  i  Madd.  214;  3 
Drew,  534  ;  2  Jur.  N.  S.  247 ;  16  Beav.  223;  6  Jarm.  Conv.  594. 


CHAPTER   IV. 

WHEN   PARTITION   CANNOT   BE   MAINTAINED. 

A  PARTY  who  has  merely  a  future  contingent  interest 
in  an  undivided  share  of  real  estate  cannot  maintain  a  suit 
for  a  partition  of  the  property.  A  mere  reversioner,  with- 
out the  concurrence  of  any  of  the  owners  of  the  present 
interest  in  the  premises,  has  no  right  to  file  a  bill  for  par- 
tition, but  a  reversioner  is  a  necessary  party,  where  a  bill 
is  filed  by  a  person  who  is  owner  of  an  undivided  share  of 
the  reversion  as  well  as  of  an  undivided  share  of  the 
present  interest  in  the  property. 

The  reversioner  is  also  a  necessary  party,  where  the 
suit  is  brought  by  the  owner  of  an  undivided  share.  It 
is  necessary  that  the  reversioner  be  made  a  party,  that 
the  title  to  the  property  shall  be  free  from  liens  and 
claims  in  case  of  sale,  or  that  a  proper  adjudication  of  his 
interest  may  be  had.^  This  rule  has  since  been  followed 
by  the  New  York  court  of  appeals.^  A  widow  having  a 
right  of  dower  in  land,  is  not  a  tenant  in  common  with 
the  owner  or  owners  of  the  land,  she  cannot    be  the  sole 

'  Striker  v.  Mott,  2  Paige,  387. 

^  Smith  V.  Shultz,  68  N.  Y.  53  ;  citing  2  Id.  19.  On  the  con- 
struction of  the  word  "  heirs  "  in  a  will.  28  N.  Y.  93  ;  53  Id.  233  ; 
I  Butler  Fearne  (Lend.  Ed.)  1844;  38  N.  Y.  410;  3  Lev.  70;  2 
Pick.  243  ;  108  Mass.  567. 

[37] 


35  THE     LAW    OF    PARTITION. 

plaintiff  or  defendant  in  an  action  of  partition.  The  con- 
trolling- principle  of  joint  tenants  and  tenants  in  common 
does  not  exist,  and  there  nuist  be  a  suit  between  those 
whose  relationship  to  each  other  is  either  that  of  joint 
tenant  or  tenant  in  common.  They  cannot  all  be  plaint- 
iffs or  all  defendants.  The  widow  is  a  tenant  in  dower.^ 
The  widow  has  no  estate  in  the  land,  and,  after  quaran- 
tine, no  right  of  possession  :  what  she  is  to  have  is  un- 
known until  it  has  been  admeasured  and  assigned  to  her, 
she  cannot  maintain  partition.* 

Where  a  lessee  of  land  becomes  a  purchaser  of  an  un- 
divided moiety  of  the  rent  and  reversion,  the  lease  and 
the  rent,  as  to  the  portion  so  purchased  by  him,  is 
merged  and  extinguished,  and  he  is  not  such  a  tenant  in 
common  (within  the  meaning  of  the  statute)  of  the  rent 
and  reversion  with  the  owner  of  the  other  half  thereof 
as  to  entitle  the  latter  to  a  partition.  A  tenant  in  fee 
and  his  landlord,  though  the  tenant  has  acquired  a 
moiety  of  the  rent  and  reversion,  cannot  maintain  an 
action  of  partition.^ 

Where  the  parties  own  separate  parcels,  and  are  not 
in  possession  of  any  portion  of  the  land,  either  as  joint 
tenants  or  tenants  in  common,  a  partition  cannot  be 
had."  Nor  can  one  of  several  partners,  pending  an  action 
for  a  dissolution  of  the  partnership  and  an  accounting  as  to 
the  same  property,  bring  an  action  of  partition. 

Where  land  is  deeded  to  husband  and  wife,    and    the 

*  Woods  V.  Clute,  i  Sandf.  Ch.  199  ;  citing  7  Johns.  247  ;  8  Id. 
558  ;  10  Wend.  414;  17  Ves.  552  ;  i  Kent  &  R.  42 ;  2  Paige,  389; 
Payne  t?.  Becker,  22  Hun,  28  ;  citing  i  Barb.  506;  10  Wend.  414; 
13  Id.  533.    See  5  Johns.  80. 

4  Lansing  v.  Pine,  4  Paige,  639, 

*  Boyd  V.  Dowie,  65  Barb.  237. 

*  Danvers  v.  Dorrity,  14  Abb.  Pr.  206. 


WHEN    NOT    MAINTAINABLE. 


39 


deed  does  not  state  how  they  are  to  hold  and  enjoy  it, 
that  is,  not  indicating  that  they  are  to  hold  the  same  as 
joint  tenants  or  tenants  in  common,  the  common-law 
rule  is  not  abrogated  by  any  of  the  New  York  statutes, 
they  hold  by  entirety  and  cannot  partition.'  This  rever- 
ses the  doctrine  laid  down  in  63  Howard,  240,  in 
the  same  case,  and  the  views  of  Judge  Danforth  referred 
to  under  the  head  of  Co-tenancy,  and  is  also  in  accord- 
ance with  the  doctrine  in  Berths  v.  Nunan,  92  N.  Y.  i  52, 
and  appears  to  fully  settle  the  law  in  this  state,  upon  the 
tenancy  of  husband  and  wife  where  they  own  lands 
together/ 

Justice  Rapallo  says,  "  The  common-law  rule,  that 
when  land  is  conveyed  to  husband  and  wife,  they  do  not 
take  as  tenants  in  common,  or  as  joint  tenants,  but  each 
becomes  seized  of  the  entirety,  per  tout  and  not  per  my, 
and  that  on  the  death  of  either,  the  whole  survives  to  the 
other, "  was  held  to  be  still  the  law  in  New  York  State. 

Partition  can  not  be  ordered  when  it  involves  an 
infant's  real  estate,  and  there  is  a  will  forbidding  the 
sale.^  Such  a  sale  would  be  utterly  void,  and  passes  no 
title  to  the  purchaser." 

Where  five  persons,  acting  as  a  committee  to  build 
sheds  for  the  convenience  of  certain  persons  (themselves 
included),    in    the   habit   of  attending    a    church,   have 

^  Zorntlein  v.  Bram,  100  N.  Y.  12  ;  9  Abb.  Pr.  N,  S.  444. 

*  Supra,  "  Co-tenancy.  "  Cases  holding  otherwise,  see  9  Am. 
R.  679  ;  31  Ind.  181  ;  50  Miss.  103  ;  50  Ala.  182  ;  9  Kan.  466;  7  N. 
Y.  Week.  Dig.  15  ;  76  N.  Y.  262. 

*  Muller?/.  Struppman,  55  How.  Pr.  521  ;  citing  46  N.  Y.  236; 
14  N.  Y.  Supm.  Ct.  151  ;  6  Hill  415  ;  15  N.  Y.  617  ;  62  Id.  628  ;  5 
Sand.  363;  52  Barb.  412. 

'"  Rogers  z/.  Dell,  6  Hill.  415  ;  citing  2  Ves.  23.  See  73  N.  Y. 
361  ;  96  Id.  263;  8  How.  U.  S.  542  ;  74  111.  154. 


40  THE    LAW    OF    PARTITION. 

received  the  conveyance  of  the  premises  on  which  it  is 
proposed  to  build,  and  subsequently  entered  into  a  writ- 
ten agreement  with  others,  by  which  they  are  empowered, 
as  such  committee,  to  make  the  erections  at  the  joint 
expense  of  all  the  subscribers,  each  subscriber  to  pay  an 
equal  share  of  the  expense  of  the  improvement  "  upon  com- 
pletion thereof  and  the  delivery  of  a  proper  title  for  each 
respective  share  thereof,"  the  title  is  so  far  impressed 
with  a  trust  in  favor  of  the  subscribers,  that  partition 
between  the  grantees  will  not  be  allowed  ;  they  are  not 
tenants  in  common  in  such  a  sense  that  either  can  com- 
pel partition.  It  would  be  contrary  to  the  trust,  and  the 
intention  and  object  of  the  parties  would  be  defeated. 
An  action  of  partition  would  be  a  breach  of  trust.  The 
parties  were  all  bound  by  the  contract,  and  no  one  could 
put  an  end  to  the  contract,  which  would  be  the  result  of 
a  judgment  of  partition."  Lands  set  apart  by  the  State 
for  salt-works  are  not  the  subject  of  partition  between 
the  heirs  of  the  person  by  whom  they  were  set  apart  by 
the  State  authorities.  The  heirs  would  take  no  estate  or 
interest  in  the  premises  by  descent.  There  is  no  estate  of 
inheritance,  or  for  life  or  lives,  or  for  years,  in  the  above- 
mentioned  salt  lands.  The  fee  remained  in  the  State,  and 
the  sale  of  the  lands  was  prohibited.^*  It  has  been 
argued  that  the  erection  of  buildings  and  occupation 
would  make  an  inheritable  easement.*  It  was  argued  in 
this  case  that  in  setting  the  lands   apart  the   legislature 

'^  Baldwin  v.  Humphry,  44  N.  Y.  609;  citing  10  Wend,  218  ; 
5  Hill,  526;  17  Barrb.  263;  15  Id.  555;  9  N.  Y.  502;  34  Barb.  173. 

^^  Newcomb  v.  Newcomb,  12  N.  Y.  603. 

■  This  doctrine  is  discussed  in  15  Wend.  380;  11  Mass.  536  ;  4 
East,  108  ;  5  Barn.  &  C  210 ;  8  Id.  288  ;  6  Hill,  61  ;  7  Bing.  682 ; 
2  Id.  279. 


WHEN    NOT    MAINTAINABLE.  41 

created  no  estate,  and  that,  to  maintain  an  action  of  that 
kind,  the  plaintiffs  must  show  that  their  ancestor  was 
seized  of  an  estate  of  inheritance,  that  the  subject  matter 
is  real  estate,  and  that  it  was  derived  by  descent,  and  that 
the  parties  have  a  common  interest  in  the  subject  matter 
of  the  action.** 

In  a  complicated  case  where  there  is  land  under 
water,  an  upland  and  a  right  of  way,  held,  that  such 
portion  or  portions  of  the  water-right  as  have  been  con- 
veyed by  the  patentee  or  his  heirs  whose  residuary  in- 
terest was  vested  in  the  plaintiff,  must  be  excluded 
from  the  partition.  The  plaintiff  had  no  right  calling  for 
the  exercise  of  the  power  of  the  court  to  order  a  sale  of 
the  property  so  conveyed  before  he  acquired  title.  It 
was  also  held,  that  it  never  could  be  sustained  to  grant  a 
judgment  to  sell  property  in  which  the  plaintiff  had  no 
interest,  on  his  apphcation  ;  nor  could  an  owner  under 
such  circumstances  compel  an  owner  of  property  to  sub- 
mit to  the  sale  of  his  property  at  the  suit  of  a  person 
who  had  no  right  thereto.  As  to  the  parcels  of  said 
water-right,  in  all  of  which  the  plaintiff  had  an  interest, 
but  in  which  the  various  defendants  had  dissimilar 
interests,  the  objection  is  that  the  same  parties  are  not 
joint  owners  or  tenants  in  common  of  all  the  property 
sought  to  be  partitioned  :  that  the  objection  would  be 

''  These  propositions  were  perhaps  not  considered  by  the  court, 
the  case  having  been  decided  somewhat  upon  the  const itutiofial  atid 
statutory  law  of  New  York.  The  following  were  cited  to  sustain 
the  propositions  referred  to:  2  Barn.  &  Aid.  738  ;  Sen.  Doc.  1847, 
108,  pp.8,  9;  I  Hilliard  Abr.  216;  5  N.  Y.  9,  92  ;  Mountjoy's  case, 
Godb.  17;  24  Eng.  Com.  Law,  136-138;  19  Ves.  144-158;  2 
Paige,  27;  8  Johns.  562-564;  11  Wend.  647;  8  Cow.  361,  366,  367, 
369,  370;  Cow.  &  H.  Notes,  995  ;  Harp.  390;  7  Mass.  503;  i  Root, 
147  ;  I  Hill,  176  ;  I  N.  Y.  564  ;  Laws  of  1854,  986. 


42  THE    LAW   OF    PARTITION. 

good  if  taken  in  the  answer."  All  persons  interested  in 
the  estate  to  be  partitioned  must  be  made  parties,  and 
unless  this  shall  have  been  done  a  decree  of  partition 
will  not  be  made.^'  The  purchaser  will  not  get  a  good 
title,  and  the  partition  will  be  of  little  benefit  unless  the 
wives  of  the  co-tenants  are  made  parties  to  the  action. 
It  is  the  duty  of  the  court  to  require  that  all  interested 
persons  shall  be  made  parties,  to  the  end  that  the  pur- 
chaser may  get  a  perfect  title.^*^  The  referee  before 
whom  the  action  is  tried  has  power  to  amend  a  com- 
plaint upon  the  trial,  by  striking  out  or  inserting  the 
names  of  a  party  upon  such  terms  as  he  may  deem  pro- 
per." 

A  receiver  appointed  in  supplementary  proceedings 
cannot  partition  :  his  title  is  such  that  he  cannot  maintain 
an  action  of  that  kind."  The  title  to  the  real  estate  held 
by  the  judgment  debtor  does  not  become  vested  in  the 
receiver  ;  there  being  no  conveyance  from  the  judgment 
debtor,  no  title  passed,  therefore  there  could  be  no  co- 
tenancy," the  New  York  court  of  appeals  having  the 
question  before  them  in  November,  1878.  There  were 
other  questions  before  the  court  in  reference  to  the  plead- 
ings, but  upon  this  question,  the  justice,  in  his  able  opinion, 
said  :  "  We  are  inclined  to  the  opinion  that  a  receiver 
thus  appointed  does  not  obtain  such  a  title  to  real  estate 

^  ^  Beach  v.  Mayor,  &c.,  45  How.  Pr.  357  ;  citing  24  Barb.  478  ;  5 
Cow.  461  ;  15  Wend.  597  ;  26  Id.  387,  404;  11  How.  Pr.  489;  19 
Wend.  367  ;  9  Cow.  531  ;  14  Johns.  354. 

1*  Burhans  v.  Burhans,  2  Barb.  Ch.  398. 

^^  Knapp  V.  Hungerford,  7  Hun,  590. 

16  2    Wait  Pr.   276;    also  see   Knapp  ta    Hungerford,    ante,. 
where  the  power  to  amend  is  discussed  by  Justice  Mullin. 

^^  Dubois  z/.  Cassady,  5  Week.  Dig.  210. 

1^  Scott  V.  Elmore,  10  Hun,  68  ;  citing  19  N.  Y.  375  ;  i  Barb. 
Ch.  592  ;  5  Sel.  142.     See  33  Barb.  498. 


WHEN    NOT    MAINTAINABLE.  43 

as  will  enable  him  to  maintain  an  action  for  partition  ;  but 
we  are  not  now  called  upon  to  decide  whether  he  does 
or  not.  "^* 

Partition  cannot  be  maintained  unless  the  plaintiff 
has  either  actual  or  constructive  possession  with  the 
defendants  at  the  time  of  the  commencement  of  the 
action.  Adverse  possession  is  an  absolute  bar.""  Before 
a  partition  can  be  maintained,  the  right  of  possession 
must  be  fully  settled.  Where  there  is  an  adverse  posses- 
sion an  estate  in  co-tenancy  does  not  exist,  so  far  as  the 
right  to  possession  is  to  be  considered,  and  that  is  an 
essential  element  in  the  proceedings.  Adverse  claims  to 
real  property  can  in  no  way  be  determined  in  an  action 
of  partition  ;  the  title  of  the  parties  should  be  first  estab- 
lished by  a  proper  action  brought  for  that  purpose. 

It  has  been  held  that  partition  can  only  be  maintained 
by  one  who  has  a  seizin  in  fact  of  the  premises."^ 

Where  one  tenant  in  common  conveys  to  another  his 
undivided  interest,  retaining  the  use  of  the  premises  dur- 
ing  his    life,   the  grantee  cannot    maintain,    and   is   not 

19  Dubois  7/.  Cassady,  75  N.  Y.  298;  5  Week.  Dig.  210,  ante ; 
citing  45  N.  Y.  166;  2  Hilt.  290.  Also  see  44  Barb.  230;  9  N.  Y. 
142;  17  Id.  569  ;  21   Id.  577  ;  19  Id.  375  ;  33  Barb.  498  ;  10  Hun,  68. 

2^  Sullivan  v.  Sullivan,  66  N.  Y.  37  ;  Florence  v.  Hopkins,  46 
N.  Y.  182,  ante.  Also  see,  19  Wend.  367  ;  9  Cow.  530;  2  Barb.  Ch. 
398  ;  59  N.  Y.  426  ;  12  Id.  519;  11  Vt.  1 29  ;  56  N.  Y.  226 ;  2  Paige, 
387;  3  Barb.  Ch.  608  ;  22  Mich.  65  ;  4  Hun,  198,  reversed,  see  66 
N.  Y.  38. 

-'  Bonner  t/.  Kennebeck  Purchase,  7  Mass.  475  ;  Rickard  v. 
Rickard,  13  Pick.  251.  Examine  on  same  subject,  24  Conn.  230; 
19  Wend.  367  ;  5  Denio,  385  ;  2  Barb.  Ch.  398  ;  36  N.  H.  326;  13 
N.  J.  271. 

On  possession  and  right  of  entry,  6  N.  H.  109  ;  14 
Mass.  434;  2  Ohio  St.  207;  31  Mo.  171  ;  19  La.  Ann.  356;  u  N. 
Y.  Leg.  Obs.  116;  I  Edw.  Ch.  629. 

Tkusteeship.   I  T.  &  C.  124;  65  Barb.  583. 


44  THE    LAW    OF    PARTITION. 

entitled  to  partition."  It  seems  to  have  been  settled  that 
a  partition  cannot  be  had  of  land  to  which  the  parties 
have  only  a  title  in  remainder  after  the  determination  of 
a  particular  estate."  The  New  York  Code  of  Civil  Pro- 
cedure,"  provides  for  partition  among  the  remainder 
men,  or  reversioners  when  they  are  tenants  in  common 
among  themselves,  or,  in  other  words,  when  there  is  a 
co-tenancy  as  remaindermen  or  reversioners  in  the  land. 
An  owner  in  fee  of  an  undivided  part  of  certain  land  and 
an  estate  for  life  in  the  residue,  is  not  entitled  to  partition 
as  between  him  and  persons  who  have  a  contingent  re- 
mainder in  such  residue." 

To  obtain   partition  in  equity  it  is  necessary  for  the 
legal  title  to  be  clear  and  undisputed  ;  yet  if  the  title  be^v 
equitable,  or  there  are  equities  to  settle,  application  may  ^ 
be  made  to  a  court  of  equity  for  that  purpose.     Equity  "" 
having  once  taken  jurisdiction,  it  will  decree  a  partition  if 
proper  case  be  made  out  therefor.     When  the  question  of 
title  is  raised  during  proceedings  in  equity,  the  court  will  ^^^ 
order  a  stay  of  proceedings  until  the  title  can  be  deter%^^ 
mined  by  law,  but  the  court  will  not  do  this  of  its  own  ^ 
motion.     It  is  more  usual  in  such  cases  to  dismiss  the 
complaint.*^ 

A  decree  for  partition  or  sale  of  real  estate  will  not 
be   granted    amongst    heirs,    while    the  personal    prop- 

^^  Nichols  V.  Nichols,  28  Vt.  228,  an/^. 

^^  Culver  V.  Culver,  2  Root,  278  ;  Ziegler  v.  Grim,  6  Watts, 
106;  Brown  v.  Brown,  8  N.  H.  93. 

°  §  1533'  ««^^-     See  15  Mass.  155. 

-^  Hodgkinson  Petitioner,  12  Pick.  374. 

*  The  rulings  of  the  courts,  may  be  found  as  construed  under 
different  laws  in  Walk.  200;  3  Head,  557  ;  3  Humpli.  435  ;  33  Miss. 
149;  10  Rich.  Eq.  428;  3  Sneed,  187;  4  Rand.  74;  10  N.  J.  Eq. 
277  ;  29  Ala.  478  ;  26  111.  472 ;  18  How.  U.  S.  297  ;  2  Ind.  17:3  Md. 
Ch.  497  ;  39  Miss.  392. 


WHEN    NOT    MAINTAINABLE.  45 

erty  appears  to  be  insufficient  to  pay  the  debts  of  the 
ancestor.-^  It  is  not  the  business  of  equity  to  undertake 
the  administration  of  estates  in  the  first  instance,  nor  to 
take  the  administration  out  of  the  hands  of  persons  duly 
appointed  and  who  are  in  no  default. 

If  the  title  claimed  by  the  plaintiff  in  partition  is 
subject  to  the  right  of  a  third  party  to  enforce  a  sale  for 
his  benefit,  or  a  conveyance  to  himself,  the  bill  should  be 
dismissed,  unless  such  third  party  or  his  representatives 
be  made  parties  to  the  suit.-* 

Partition  will  not  be  ordered  on  the  application  of  an 
infant,  unless  it  be  made  satisfactorily  to  appear  that  the 
interests  of  the  infant  require  such  partition  sale."  Where 
the  rights  of  an  infant  are  involved,  a  purchaser  will  be 
relieved  from  his  bid,  if  a  reasonable  doubt  exist  as  to  the 
validity  of  the  title  to  be  acquired.-^  And  a  sale  will  not 
be  ordered  where  the  rights  of  infants  may  be  prejudiced, 
if  there  be  any  mode  whereby  the  plaintiff  may  be  assigned 
a  portion  of  the  premises."'  Where  the  purchaser  is 
.relieved  of  his  bid  by  reason  of  a  defect  in  the  title,  he  is 
entitled  to  be  reimbursed  his  expenses,  and,  if  the  funds  of 
the  estate  are  insufficient  for  that  purpose,  the  parties  to 
the  partition  suit  are  personally  liable  therefor.  This 
includes  the  guardian  ad  litem  of  the  infant  plaintiff.  An 
infant  may  revive  and  continue  a  suit  for  partition,  even 
though  he  is  prohibited  from   maintaining  the  action  in 

-^  Mathews  v.  Mathews,  i  Edw.  Ch.  564;  adhered  to,  7  Paige, 
391  ;  approved,  23  Hun,  119-121  ;  commented,  4  Edw.  Ch.  47,  48; 
overruled,  7  Paige,  411.     See  22  Wend.  501. 

•"'  Ford  V.  Belmont,  7  Rob.  97. 

*'  Struppman  v.  Muller,  52  How.  Pr.  211  ;  citing  14  Abb.  Pr. 
299;  26  How.  Pr.  250;  34  Barb.  106. 

-"  Struppman  v.  Muller,  ante.     See  6  Abb.  N.  C.  343. 

2»  Walker  v.  Walker,  3  Abb.  N.  C.  12. 


46  THE    LAW    OF    PARTITION. 

the  first  instance.'"  In  such  a  case,  there  remains  upon  the 
court  the  duty  to  protect  the  infant. 

Although  the  owners  of  the  equity  of  the  redemption 
may  have  partition  among  themselves,  mortgage  and 
judgment  creditors  cannot  be  compelled  to  join  in  it,  and 
no  relief  can  be  asked  for  against  them."  The  rights  of 
the  mortgage  and  judgment  creditors  cannot  be  affected 
in  such  an  action.  The  parties  are  the  tenants  in  common 
of  an  interest  less  than  a  fee.  Those  having  liens  upon  the 
fee  cannot  be  disturbed. 

Parties  having  no  vested  interest  in  the  real  estate  are 
not  entitled  to  a  partition  or  sale/^ 

It  is  irregular  for  a  bill  to  be  filed  by  a  person  of 
unsound  mind,  not  so  found  by  inquisition,  by  his  next  of 
friend,  but  a  proceeding  for  the  sale  should  be  instituted 
under  the  lunacy  regulation  act.'' 

Where  the  legal  title  is  in  dispute,  or  when  it  depends 
on  doubtful  facts  or  questions  of  law,  a  bill  for  partition 
will  not  lie.'* 

A  receiver  in  supplementary  proceedings  of  a  "  wid- 
ow's right  of  dower  "  may  maintain  an  action  in  his  own 
name  as  such  receiver  for  the  admeasurement  of  the  right 
of  dower,  but  he  cannot  bring  an  action  of  partition.'^ 

30  McCosker  v.  Brady,  i  Barb.  Ch.  329. 

31  Wotten  V.  Copeland,  7  Johns.  Ch.  140;  citing  i  Ves.  &  B. 
551  ;  followed,  Hopk.  504. 

On  suspicious  title,  see  2  Ves.  59,  679 ;  i  Dessaus.  Ch.  382 ;  i 
Hopk.  495. 

32  Woodruff  v.  Cook,  47  Barb.  304. 

33  Halfhide  v.  Robinson,  8  Moak  Eng.  R.  918  ;  citing  15  &  16 
Vict.  c.  55,  §  I  ;  Law  R.  4  Ch.  167  ;  Lunacy  Regulation  Act,  1862. 

34  Chapin  v.  Sears,  18  F.  R,  814. 

35  Payne  v.  Recker,  87  N.  Y.  153;  reversing  22  Hun,  28.  Dis- 
tinguished, 33  Barb.  498  ;  20  Johns.  410;  citing  57  N.  Y.  322  ;  46 
Id.  574;  33  Id.  498;  6  Id.  596;  Code  of  Pro.  §  in  ;  12  Ind.  37;  20 


WHO    MAY    PARTITION.  47 

A  legatee  under  a  will  cannot  sustain  an  action  for 
the  partition  and  sale  of  real  estate  where  the  will  con- 
tains authority  to  the  executors  to  sell  the  same  for  the 
purpose  of  satisfying  the  bequests  made  by  the  testator.^* 

The  will  of  one  S.  gave  five-sixths  of  his  residuary 
estate,  which  consisted  of  a  farm  and  some  personal 
property,  to  five  of  his  children,  "to  be  equally  divided 
between  them."  The  remaining  one-sixth  he  gave  to  a 
trustee,  in  trust  to  pay  the  interest  thereof  annually  to  E, 
a  son  of  the  testator,  and  in  a  contingency,  a  portion  of 
the  principal,  and  at  the  death  of  E.  to  pay  the  surplus 
"  then  remaining,"  to  his  children.  The  executor,  how- 
ever, was  empowered  to  sell  the  real  estate,  when  and  in 
such  manner  as  he  should  think  proper,  "  and  rent  and 
lease  the  same  until  thus  sold."  In  an  action  for  parti- 
tion of  the  farm,  the  court  held,  that  the  will  created  a 
valid  express  trust  in  the  executor,  who  took  the  legal 
title,  and  no  estate  therein  vested  in  the  children  ;  that 
the  power  to  lease  carried  with  it  the  power  to  receive 
rents  ;  and,  although  there  was  no  express  direction  as  to 
the  disposition  to  be  made  of  them,  the  reasonable  impli- 

Johns.  410;  Code  Civ.  Pro.  §  2468  ;  5  Paige,  448  ;  5   Barb.  438  ;  33 

Id.  498  ;  9  N.  Y.  147,  148  ;  24  Alb.  L.  J.  32  ;  48  N.  Y.  33  ;  66  N.  Y. 
37;  46  Id.  182  ;  56  Id.  226  ;  11  N.  Y.  Leg.  Obs.  116;  75  N.  Y.  299; 
2  R.  S.  1 123,  §  26  ;  3  Id.  776  ;  5  "Wait  Pr.  161,  et  seq.;  26  N.  Y.  42  ; 
13  Wend.  524;  I  Barb.  500;  Gerard  Titles,  168;  2  Cow.  638;  13  N. 
Y.  322;  12  Id.  622;  u  How.  Pr.  97  ;  38  Barb.  18;  i  Barb.  560;  i 
Sandf.  Ch.  199;  15  Johns,  319;  2  N.  Y.  252;  10  Wend.  414;  36 
How.  Pr.  260;  2  Barb.  319;  23  How.  Pr.  247;  8  N.  Y.  iia-113;  4 
Hun  796;  15  Johns.  80;  3  Paige,  483-503;  3  Abb.  N.  C.  207;  33 
Barb.  498  ;  Code  Civ.  Pro.  §  1532. 

See  13  Weekly  Digest,  441  ;  S.  C.,22  Hun  28.  The  court  of 
appeals  held  that  the  receiver  could  maintain  an  action  for 
admeasurement.  In  this  they  overruled  the  decision  of  the  gen- 
eral term  in  22  Hun,  28. 

36Daviesz'.  Davies,  15  Week.  Dig.  118  ;  citing  85  N.  Y.  53. 


48  THE    LAW    OF    PARTITION. 

cation  was,  that  they  were  to  go  to  the  persons  benefi- 
cially interested  in  the  estate  ;  and  that,  therefore,  parti- 
tion could  not  be  had.  To  constitute  a  valid  and  legal 
trust,  the  law  does  not  imply  that  the  precise  words  of 
the  statute  shall  be  used.  It  is  sufficient,  if  the  intention  to 
create  the  trust  can  be  fairly  collected  and  construed 
from  the  instrument  creatine  the  trust. ^^ 


37  Morse  v.  Morse,  85  N.  Y.  53;  citing  53  N.  Y.  351  ;  2  N.  Y. 
19;  69  N.  Y.  I  ;  23  Barb.  163;  3  Wheat.  577;  Snell  Prin.  of 
Equity,  169-171  ;  2  R.  S.  729,  §  56;  4  Kent  Com.  321;  41  N.  Y. 
289  ;  79  Id.  478  ;  66  Id.  468  ;  2  Edw.  Ch,  156  ;  42  N.  Y.  531  ;  50  Id. 
431.  The  following  may  also  be  examined:  65  Barb.  583;  64  N. 
Y.  354;  14  Hun,  548  ;  12  Barb.  113;  42  Id.  580;  72  N.  Y.  563 ;  48 
Id.  106  ;  60  Barb.  63;  7  Lans.  195  ;  73  N.  Y.  360  ;  70  Id,  139  ;  65 
Barb.  587  ;  2  R.  S.  (Banks)  1117,  §  142  ;  N.  Y.  Laws  1853,  ch,  238; 
4  Abb.  N.  C.  317  ;  65  Barb.  250  ;  2  Edw.  Ch.  156  ;  63  N.  Y,  652  :  2 
Hun,  90 ;  3  Wheat.  563 ;  24  Wend.  641  ;  3  Edw.  Ch.  571  ;  2  Sandf. 
Ch.  568  ;  5  Paige,  485  ;  3  Sandf.  Ch.  556 ;  2  Bouv.  Law  Diet.  637 : 
Fearne  Cont.  Rem.  2  ;  Coke  Litt.4  b  ;  Hammond  Nisi  Prius,  151 ; 
7  East,  200 ;  I  Ventr.  393;  2  Rolle  Abr.  2;  19  Wend.  367;  11  N. 
Y.  Leg.  Obs.  116;  II  How.  Pr.  489. 


CHAPTER  V. 

POSSESSION,   ACTUAL   AND   CONSTRUCTIVE. 

The  detention  and  enjoyment  of  real  estate  held  by- 
tenants  in  common  or  joint  tenants  as  a  right,  is  the  pos- 
session of  such  land  so  held  in  co-tenancy,  and  that  right 
is  a  necessary  element  in  partition,  and  it  cannot  be  had 
without  possession,  either  actual  or  constructive.  Actual 
possession  exists  where  the  thing  is  in  the  immediate 
occupancy  of  the  party.  Actual  possession  means  occu- 
pancy.^ 

Sir  William  Blackstone  considered  prior  occupancy  to 
be  the  foundation  of  title  to  property.  And  when  the 
occupant  became  unwilling,  or  incapable  to  continue  his 
occupancy,  the  disposition  of  property  by  sale,  by  will  or 
by  the  law  of  succession  and  inheritance.  Sir  Francis  Pal- 
grave,  an  able  law  commentator,  said  "  that  the  practi- 
cal establishment  of  the  theory  that  the  king  was  the 
original  proprietor  of  all  the  lands  in  the  kingdom  was  to 
be  attributed  to  the  constant  working  of  the  crown 
lawyers,  who  always  presumed  that  the  land  was  held  by 
feudal  tenure,  until  the  contrary  could  be  shown."  '  The 
same  principle  of  feudal  tenure  exists  in  Scotland."      The 


'  3  Dev.  34 ;  Bouvier  Law  Dictionary,  page  435. 
1  Rise  and  Progress  of  English  Commonwealth,  i,  584. 
^Bell's  Principles.  §676. 
4  [49J 


50  THE    LAW    OF    PARTITION. 

fundamental  idea  of  the  English  law  was  derived  from  the 
maxims  of  the  feudal  tenures,  that  the  king  was  the 
original  owner  and  possessor,  or  lord  paramount  of  all  the 
land  in  the  kingdom  over  which  he  ruled,  and  that  he  was 
the  source  of  all  title,  that  legal  title  and  legal  possession 
could  not  be  had,  unless  traced  back  to  the  king.^ 

The  same  principle  has  been  adopted  in  this  country, 
and  applied  to  our  republican  form  of  government. 
James  Kent  says,  in  his  able  work,  "  It  is  a  settled  and 
fundamental  doctrine  with  us,  that  all  valid  individual 
title  to  land  within  the  United  States  is  derived  from  the 
grant  of  our  local  governments  or  from  that  of  the  United 
States,  or  from  the  crown  or  royal  chartered  governments 
established  here  prior  to  the  Revolution."  This  is  the 
doctrine  that  has  been  declared  in  New  York  as  a  con- 
stitutional law.**  Feudal  tenures  are  abolished  in  New 
York,"  and  all  lands  within  the  State  are  declared  to  be 

3  3  Kent  Com.  377. 

"  Right  of  property  in  lands — Escheats.  The  people 
of  this  State,  in  their  right  of  sovereignty,  are  deemed  to  possess 
the  original  and  ultimate  property  in  and  to  all  lands  within  the 
jurisdiction  of  the  State  ;  and  all  lands  the  title  to  which  shall 
fail,  from  a  defect  of  heirs,  shall  revert,  or  escheat  to  the  people. 
N.  Y.  Const,  art.  I.  §  11. 

The  acts  of  1833  and  1834  concerning  relinquishment  of 
escheats  are  constitutional.     3  N.  Y.  29. 

Escheats  are  subject  to  claims  of  creditors  ;  6  Johns.  Ch.  360  ; 
and  outstanding  life  estates  ;  2  Hill,  67;  and  purchase-money,  i 
Sandf.  Ch.  139. 

A  trust  cannot  defeat  the  right  of  escheat ;  as  in  the  case  of 
an  alien  ;  5  Paige,  114;  nor  adverse  possession  ;  27  Barb.  376;  nor 
naturalization,  by  retractive  effect.    39  N.  Y.  333. 

•  Feudal  tenures  abolished.  All  feudal  tenures  of  every 
description,  with  all  their  incidents,  are  declared  to  be  abolished, 
saving  however,  all  rents  and  services  certain  which  at  any  time 
heretofore  have  been  lawfully  created  or  reserved.  N.  Y.  Const, 
art.  I. 


POSSESSION.  5 1 

allodial.*^  It  is  upon  the  allodial  principle  that  the  title 
of  lands  under  water  are  in  the  people/  Whatever 
rights  the  owner  of  the  adjoining  lands  may  have  in  the 
lands  below  high-water  mark  are  public  rights,  which  the 
people  have,  he  is  one  of  the  people,  and  he  can  not  under- 
take to  control  the  land  beneath  the  water,  such  lands 
are  under  control  of  the  Legislature.  This  does  not 
refer  to  a  mill-pond,  or  a  small  stream  upon  a  farm,  but 
to  State  waters,  such  as  the  Hudson  river. 

Our  courts  are  not  apt  to  notice  claims  made  to  land 
within  this  State  under  grants  made  by  the  French  Gov- 
ernment in  Canada  prior  to  the  treaty  between  Great 
Britain  and  France,  in  1753  ;  at  most,  they  are  equitable 
claims,  and  afford  no  evidence  of  legal  title  that  can  be 
recognized  by  a  court  of  law.'  Purchases  made  from 
Indians  under  competent  sanction  of  the  government  of 
the  United  States,  vested  good  title  in  the  purchaser  and 
gave  him  the  right  to  the  possession  of  the  land.^  This 
opinion  is  contrary  to  previous  authorities  upon  the  same 
subject  ;  but  the  law  seems  to  be  settled,  that  a  purchase 

*  Allodial  tenure.  All  lands  within  this  State  are  declared  to 
be  allodial,  so  that,  subject  only  to  the  liability  to  escheat,  the 
entire  and  absolute  property  is  vested  in  the  owners,  according  to 
the  nature  of  their  respective  estates.     N.  Y.  Const,  art.  I.  §  13. 

4  Gould  7/.  H.  R,  R.  Co.,  6N.  Y.  522;  citing  8  Cow.  146;  4 
Wend.  9  ;  4  N.  Y.  195  ;  Am.  Jur.  No.  37,  p.  121  ;  26  Wend.  414;  5 
Mason,  195;  3  Kent  Com.  432  ;  5  Wend.  444;  17  Id.  590;  20  Id. 
149;  26  Id.  404;  N.  Y.  Laws  1835,  ch.  232  ;  Blacks.  Com.  261  ;  ro 
Pet.  662  ;  2  Johns.  322  ;  2  Pick.  44  ,  8  Watts,  434 ;  22  Wend.  425 ; 
3  How.  U.  S.  222;  16  Pet.  367  ;  2  McLean,  376-  10  Johns.  236;  5 
Ham.  410. 

^  Jackson  v.  Ingraham,4  Johns.  163;  distinguished  m  8  Cow. 
610.     See  8  Barb.  163. 

•5  Mitchel  V.  United  States,  9  Pet.  710.  See  Hob.  322  ;  Co. 
Litt.  I,  41,  b;  4  Bac.  Abr.  157,  Day  Com.  Lig.  76.  This  case  was 
affirmed  m  1 5  Pet.  52,  80.     See  6  Pet.  5 1 5. 


52  THE    LAW    OF    PARTITION. 

from  Indians  with  the  approbation  of  the  proper  govern- 
ment agent  carries  title  and  right  of  possession.  This 
refers  especially  to  purchases  made  at  Indian  treaties.' 
It  is  judicially  settled  in  Kentucky  and  Ohio,  and  in  the 
supreme  court  of  the  United  States,  that  a  patent  for 
land  conveys  the  legal  title,  and  the  right  of  possession, 
but  leaves  all  equities  open  ;  and  the  courts  may  go 
behind  the  patent,  and  examine  into  the  equity  of  the 
title.* 

In  order  to  have  a  complete  possession  two  things  are 
required  :  that  there  be  an  occupancy,  apprehension,  or 
taking,  and  that  the  taking  be  with  intent  to  possess.  A 
taking  with  the  intent  to  disturb  another,  but  not  to 
occupy,  is  not  a  possession  in  law.  It  has  been  said  that 
children,  insane  people  and  idiots  cannot  possess  nor 
acquire  possession,  because  they  have  no  legal  will  of 
their  own,  and  therefore  have  not  the  legal  power  to  take. 
But  people  who  have  not  the  will  of  their  own  to  possess 
a  thing,  have  the  right  to  possess,  and  a  court  of  law  or 
of  equity  is  bound  to  protect  that  right  against  all 
aggressors.  While,  as  a  general  rule,  an  infant  cannot 
maintain  an  action  of  partition  of  lands  of  which  it  is  one 
of  the  co-tenants,  if  it  is  for  the  best  interest  of  the  infant 
that  the  lands  subject  to  such  co-tenancy  should  be  par- 
titioned or  sold,  and  the  proceeds  distributed,  the  court 
v/ill  allow  such  infant  to  file  a  bill  for  such  relief,  and  the 
court  will  also  protect  the  interests  of  the  infant  in  all  the 
proceedings.  While  the  common-law  rule  may  be  against 
the  idea  that  the  infant  has  power  to  take  and  possess, 
the  court  will  take  and  possess  for  the  infant,  and  render 
its  protection  to  all  of  his  interests  in  the  case,  and  will 

■^  Colman  v.  Doe,  4  Smedes  &  M.  40. 
8  Brush  V.  Ware,  1 5  Pet.  93. 


POSSESSION.  53 

see  that  all  the  rights  of  the  one  barred  by  age  were  ren- 
dered unto  the  one  to  whom  they  belong.  This  rule  is 
applicable  to  idiots  and  lunatics.  Possession  may  be 
shown  by  fencing,  cultivating  or  otherwise  improving  the 
land,  or  performing  any  ordinary  acts  of  ownership  over 
it,  as  by  using  it  for  a  wood  lot.  " 

A  person  may  cease  to  reside  upon  land  which  he 
has  occupied,  but  without  any  intention  of  abandoning 
the  possession  of  the  land.  This  is  civil  possession.  It 
is  the  detention  of  a  thing  by  virtue  of  just  title  and 
under  the  conviction  of  possessing  as  owner.  "  The  fail- 
ure to  take  possession  is  sometimes  considered  a  badge  of 
fraud.  In  Connecticut,  Delaware,  Georgia,  Massachusetts, 
New  Jersey,  New  York,  Ohio,  Pennsylvania,  Rhode 
Island,  South  Carolina,  Virginia,  and  probably  in  other 
States,  the  real  and  personal  estates  of  intestates  are  dis- 
tributed among  the  heirs  without  any  reference  or  regard 
to  the  actual  seizin  of  the  ancestor.  "  In  Maryland, 
New  Hampshire,  North  Carolina,  and  Vermont  the  doc- 
trine of  possessio  fj'atj'is,  it  seems,  still  exists.  ^^  By 
the  common  law  the  ancestor  from  whom  the  inheritance 
was  taken  by  descent  must  have  actual  seizin  of  the 
lands,  either  by  his  own  entry,  or  by  the  possession  of 
his  own  or  his  ancestor's  lessee  for  years,  or  by  being  in 
the  receipt  of  rent  from  the  lessee  of  the  freehold.       But 

^  Machin  %>.  Geortner,  14  Wend.  239;  citing  9  Wend.  56. 
1^  La.  Civ.  Code,  3392,  3394. 

11  Reeve  Desc.  377  ;  4  Mass.  467  ;  3  Day,  166 ;  2  Pet.  59. 

12  2  Pet.  625  ;  Reeve  Desc.  377  ;  4  Kent  Com.  384. 

As  TO  THE  FAILURE  OF  THE  PURCHASER  TO  TAKE  POSSESSION. 

See  Sugd.  Vend.  8,  9 ;  i  Ves.  226 ;  11  Id,  464 ;  12  Id.  27;  i  Me. 
109 ;  6  Cow.  632 ;  9  Id.  241  ;  5  Wheat.  116;  Code  of  Two  Sicilies, 
art.  2134  ;  Bavarian  Code,  b.  2,  c.  4,  n.  5  ;  2  Greenl.  Ev.  §§  614,615  ; 
Co.  Litt.  57  a;  Cro.  Eliz.  jjy  ;  7  Johns,  i. 


54  THE    LAW    OF    PARTITION. 

there  are  qualifications  as  to  this  rule,  one  of  which 
arises  from  the  doctrine  of  possessio  fratis.  The  pos- 
session of  a  tenant  for  years,  guardian  or  brother,  is 
equivalent  to  that  of  the  party  himself,  and  is  termed  in 
law  possessio  fratris. 

Constructive  possession  is  that  which  exists  in  con- 
templation of  law  without  personal  occupation."  It  must 
relate  to  and  rest  upon  legal  title  ;  it  is  made  of  acts 
short  of  possession  in  fact,  which,  supported  by  the  legal 
title,  amount  in  law  to  actual  possession.  If  there  is  no 
valid  title  there  can  be  no  constructive  possession." 
Where  a  person  enters  upon  land  without  the  color  of 
title,  he  is  deemed  in  possession  of  no  more  than  he 
actually  occupies."  Entering  on  land  and  surveying  it, 
or  cutting  timber,  on  a  lot  designated  and  acknowledged 
by  metes  and  bounds,  would  be  evidence  of  possession.^* 

Mere  possession  of  land,  however  recent,  is  a  sufficient 
title  and  possession  to  support  an  action  of  trespass 
against  one  who  has  not  a  better  right."  Where  a  per- 
son claiming  to  own  land,  but  not  occupying  it  himself, 
but  places  his  servant  upon  it,  or  leases  it  to  some  one 
either  to  cultivate  on  shares  or  for  rent,  it  is  an  occupancy 
upon  the  part  of  the  person  so  claiming  to  own  such  land 
and  is  a  possession.'* 

13  II  Vt.  129;  I  McLean,  214,  265;  2  Blacks.  Com.  116. 
1*  Clements  v.  Yturria,  81  N.Y.  285  ;  citing  15  Wall.  395  ;  20  Id. 
459  ;  92  U.  S.  165  ;  93  Id.  605. 

15  Moor  V.  Campbell,  15  N.  H.  208. 

16  Sawyer  ?7.  Newland,  9  Vt.  383;  Cobleigh  v.  Young,  15  N.  H. 

493- 

17  Cutters  7/.  Cowper,  4  Taunt.  547.  See  i  Hawks,  4S5  ;  26  Vt. 
170;  34  Ala.  159;  4  Harring.  345  ;  18  Barb.  80 ;  11  Ind.  417;  2 
Head,  398  ;  2  Dutch.  525;  55  Me.  103;  8  Gray,  415;  75  III.  566; 
113  Mass.  29. 

18  Lamb  v.  Swain,  3  Jones,  370. 


POSSESSION. 


55 


The  doctrine  of  constructive  possession  in  Vermont  is, 
that  a  deed  of  land  which  is  recorded,  shall,  so  far  as  the 
grantee's  title  is  concerned,  be  a  substitute  for  a  permanent 
inclosure."  Where  a  person  occupies  and  improves  under 
a  deed  a  tract  of  land,  a  portion  of  which  is  inclosed,  he 
is  deemed  in  possession  of  the  whole,  especially  if  he 
make  a  notorious  claim  to  the  whole.""  It  is  not  neces- 
sary in  such  a  case  that  the  claim  of  the  owner  be  by  a 
recorded  deed,  or  that  it  should  be  by  a  deed  containing 
all  the  statutory  requirements  and  requisites  to  convey 
land."  If  a  person  own  two  adjoining  lots  of  land,  by  dif- 
ferent titles,  the  possession  of  one  does  not  extend  by 
construction  to  the  other."  Yet  where  several  detached 
lots  of  wild  land  in  the  same  county  are  included  in  one 
mortgage,  and  the  mortgagee  enters  on  one  lot  in  the. 
name  of  all,  he  has  constructive  possession  of  all ;"  and 
a  contract  for  the  sale  and  delivery  of  the  possession  of 
land,  and  the  improvements  thereon,  must  be  in  writing. 
If  it  is  not  in  writing,  it  is  within  the  statute  of  frauds.. 
Possession  of  land  is  />  rim  a  facie  evidence  of  title,  and  is-, 
an    interest    in     land     within     the    statute.^*        Mining- 

o 

claims  are  an  interest  in  land.^^  But  a  contract  for  the 
sale  of  shares  in  a  mining  company,  conducted  on  the 
cost-book  principle,  is  no  interest  or  possession  in  lands."- 

19  Chandler  v.  Spear,  22  Vt.  88. 

2"^  Crowell  V.  Beebe,   10  Vt.  33;  Kincaid  v.  Loque.  7  Mo.  167  ;, 
Welch  V.  Louis,  31  111.  446;  Gent  v.  Lynch,  23  Md.  58. 
2'  Swift  V.  Gage,  26  Vt.  224. 

22  Moris  V.  Hayes,  2  Jones  (N.  C.)  93. 

23  Greene  v.  Pettingill,  47  N,  H.  375. 

24  Howard  v.  Easton,  7  Johns.  205.     See  5  Id.  272. 

25  Copper,  &c.    Co.   v.    Spencer,  25   Cal.    18.       See   Gore  v. 
McBrayer,  18  Cal.  582. 

20  Watson  V.  Spratley,  10  Exch.  222;  24  L.  J.    Exch.    53;  18 
C.  B.  336,  845. 


56  THE    LAW    OF    PARTITION. 

The  right  of  possession  is  either  apparent  or  actual. 
At  common  law  the  heir  of  a  disseizer  had  an  apparent 
right,  because  he  was  not  subject  to  be  turned  out  by  mere 
entry,  while  the  actual  right  was  in  the  disseizee,  who 
might  enforce  it  by  real  action.  Possession  is  actual 
when  there  is  an  occupancy,  according  to  the  adaptation 
of  the  land  to  use  ;  constructive,  when  there  is  a  para- 
mount title; adverse,  when  there  is  such  an  appropriation 
as  will  inform  the  vicinage  that  it  is  in  the  exclusive  use 
of  a  known  person.  "  Where  a  son  goes  into  possession 
of  his  father's  land  and  makes  improvements,  the  jury 
cannot  infer  from  that  fact  alone  a  gift  from  the  father.^' 
In  order  that  title  may  be  presumed  from  possession,  such 
possession  must  be  consistent  with  an  unqualified  owner- 
ship."^ The  right  of  possession  and  the  right  of  property 
are  necessary  to  constitute  a  complete  title.  Joint  ten- 
ancy requires  the  following  points,  viz.  :  Unity  of  inter- 
est, title,  time  and  possession.  Coparceners,  like  joint 
tenants,  have  a  unity  of  title,  interest  and  possession. 
They  are  seized  per  my  et  per  tout.  But  there  is  no  sur- 
vivorship between  them.  The  only  unity  required  in  ten- 
ants in  common  is  the  unity  of  possession.^"  In  general, 
the  possession  of  one  joint  tenant  is  the  possession  of  all, 
and  is  not  adverse  to  the  title  of  others.  "  Where  one  of 
several  heirs  enters  or  remains  in  possession  of  lands,  at 
the  death  of  the  ancestor,  the  law  presumes  that  he 
entered,  not  to  abate  the  shares  of  his  brothers  and  sis- 
ters, but  to  preserve  them  for  their  use,  and,  his  entry 


27  Morrison  v.  Kelley,  22  111.  610. 

28  Hugus  V.  Walker,  1 2  Penn.  173. 

29  Colvin  V.  Wolford,  20  Md.  395  ;  39  Vt.  359-525. 

30  Spencer  v.  Austin,  38  Vt.  258.      See  Wiggin  v.  Wiggin,  43 
N.  H.  S6i. 


POSSESSION. 


57 


being  consequently  theirs,  no  mere  lapse  of  time  will 
countervail  the  presumption  and  give  him  title  in  sever- 
alty." In  an  ejectment  suit  the  plaintiffs  claimed  as 
devisees  of  one  who,  with  his  brothers  and  sisters,  had 
inherited  the  land  from  their  mother,  to  whom  it  was  said 
to  have  descended,  and  who  took  possession  and  held  it 
for  over  forty  years.  The  defendants  claimed  as  devisees 
in  remainder  of  the  father,  who  survived  his  wife  for 
many  years,  and  who,  claiming  the  land,  had  devised  it 
to  the  above  named  devisor  for  life,  with  the  remainder  to 
them.  Held,  the  mere  acquiescence  of  the  mother's  heirs 
in  the  long  possession  of  their  brother  would  not  bar 
their  right  to  recover,  nor  be  such  a  recognition  and 
treatment  of  the  title,  as  coming  from  the  father,  as  to 
estop  them  from  setting  it  up  under  their  mother.  There- 
fore it  was  error  to  submit  the  question  of  the  treatment 
of  the  property  to  the  jury,  with  instructions  to  find  for 
the  defendants,  in  case  it  had  been  treated  as  above 
stated.  " 

If  a  person  be  found  in  possession  of  land,  claiming  it 
as  his  own  in  fee,  it  \'s,  prima  facie  evidence  of  his  owner- 
ship and  seizin  of  the  inheritance.  But  it  is  not  the  pos- 
session alone,  but  the  possession  accompanied  with  the 
claim  of  the  fee,  that  gives  this  effect  by  construction  of 
law  to  the  acts  of  the  party.  Possession  per  se  evidences  no 
more  than  the  mere  fact  of  present  occupation  by  right  ; 
the  collateral  circumstances  must  determine  what  is  the 
extent  and  quality  of  the  interest. '-  An  entry  into  pos- 
session of  a  tract  of  land  under  a  deed  containing  specific 

•"  Tulloch  V.  Worrall,49  Penn.  133. 

3-  Ricard  v.  Williams.  7  Wheat.  59,  105.  See  4  Mass.  354  ;  5  Id. 
240:  6  Id.  143;  10  Id.  464.  2  Atk.  632  ;  II  East,  51  ;  16  Johns.  302  ; 
2  Caines,  183 ;  4  Day,  284  ;  2  Conn.  607  ;  i  Mod.  217. 


5  8  THE    LAW    OF    PARTITION. 

metes  and  bounds,  gives  a  constructive  possession  of  the 
whole  tract,  if  not  in  any  adverse  possession,  although  there 
may  be  no  fence  or  inclosure  round  the  outside  of  the  tract, 
and  an  actual  residence  on  only  a  part  of  the  premises.  A 
fence  is  not  a  necessity  to  actual  possession.  Where  there 
has  been  an  entry  on  land  under  a  color  of  title  by  deed, 
the  possession  is  deemed  to  extend  to  the  bounds  of  that 
deed,  although  the  actual  settlement  and  improvements 
were  on  a  small  portion  only  of  the  tract.  In  such  a  case, 
where  there  is  no  adverse  possession,  the  law  construes 
the  entry  to  be  co-extensive  with  the  grant  to  the  party, 
upon  the  ground  that  it  is  his  clear  intention  to  assert  such 
possession.  ^^  Where  a  person  is  in  possession  of  lands, 
claiming  under  an  adverse  but  defective  title,  without 
any  fraud  either  of  himself  or  his  grantors,  he  can  not  be 
held  to  be  the  trustee  of  the  party  holding  the  true  title; 
nor,  if  he  has  sold  the  lands,  can  he  be  made  to  account 
for  the  proceeds  of  the  sale."  A  person  seized  in  fee  sim- 
ple has  constructive  possession,  and  is  presumed  to  be  in 
actual  possession.^^  A  stranger  can  not  intrude  upon  the 
possession  of  a  patentee  of  lands.'®  Under  the  Tennessee 
statute  of  limitations,  peaceable  and  uninterrupted  posses- 
sion upon  claim  to  hold  the  land  adverse  to  all  other  per- 

33  Ellicott  7^.  Pearl,  lo  Pet.  412  ;  citing  13  Ves.  143,  514;  13 
East,  327  ;  10  Barn  &  C.  17;  3  T,  R.  707  ;  14  East,  323  ;  4  Camp.  414; 
7  Cranch,  290;  5  Term  R.  123:8  East,  539  ;  i  Wheat.  6 ;  i  Mod.  282 ; 
4  Monroe,  442  ;  3  Littell,  19;  i  Dana's  Kent,  267  ;  2  Id.  127,  148, 
149,  354;  affirmed,  i  McLean,  206.  See  6  Pet.  61;  affirming  i 
McLean,  86  ;  1 1  Pet.  52:11  How.  498  ;  5  Cranch  C.  Ct.  472  :  Hemp. 
348  :  I  McLean,  269;  14  East,  327, 
3*  Gaines  v.  Lizardi,  i  Woods,  56. 

35  Lamb  v.  Burbank,  i  Sawyer,  227. 

36  Cowell  t/.  Lammers,  21  Fed.  R.  200;  citing  96  U.  S.  513; 
106  Id.  447;  I  Sup.  Ct.  Rep.  389  ;  16  Cal.  320;  104  U.  S.  640;  8 
Sawyer,  645  ;  16  Fed.  R.  348. 


POSSESSION.  59 

sons,  begun  under  a  grant  or  deed  of  conveyance  founded 
upon  a  grant,  and  continued  seven  years,  gives  a  com- 
plete title.'' 

Under  the  Mexican  law,  when  a  grant  of  land  was 
made  by  the  government,  a  formal  delivery  of  possession 
to  the  grantee  by  a  magistrate  of  the  vicinage  was  essen- 
tial to  the  complete  investiture  of  title.  This  proceeding, 
called,  in  the  language  of  the  country,  the  delivery  of 
judicial  possession,  involved  the  establishment  of  the 
boundaries  of  the  land  granted,  when  there  is  any  uncer- 
tainty with  respect  to  them.^^  Occupancy  under  a  mere 
license  from  a  governor,  mission  priest,  or  local  comman- 
der, without  any  proof  of  or  reason  .for  presuming  some 
grant,  cannot  be  the  basis  of  a  valid  claim  of  possession.^' 
Voluntary  abandonment  of  land  should  not  be  presumed 
under  ordinary  circumstances.'*"  It  has  been  held  that 
the  mere  possession  of  a  building  upon  land  is  not  con- 
clusive evidence  of  possession  of  the  premises  upon  which 
the  building  stood.  It  would  depend  upon  the  claim 
made  by  the  one  so  in  possession — that  is,  whether  he 
undertook  to  control  the  use  of  the  building  or  the 
occupancy  of  the  surrounding  premises." 

One  having  the  legal  title  to  and  entitled  to  the  pos- 
session of  real  estate,  except  so  far  as  he  may  subject 
himself  to  indictment,  or  otherwise  to  prosecution  for  forci- 
ble entry  and  detainer,  may  use   all   the   force   which  is 

37  Piles  z*.  Booldin,  ii  Wheat.  325. 

38  Van  Reynegan  v-  Bolten,  95  U.  S.  33. 

39  Serrand  v.  United  States,  5  Wall.  451.  See  i  Saw.  347;  i 
Wall.  721. 

40  Nunez  7/.  United  States,  Hoffm.  L.  Cas.  100.  See  23  IIow. 
262,  321. 

41  Oldershaw  v.  Garner,  Upper  C.  B.  Q.  37.  See  8  Ellis,  738  ; 
42  Conn.  226  ;  1 14  Mass.  479. 


6o  THE    LAW    OF    PARTITION. 

reasonable,  proper  and  necessary  to  remove  one  who  is 
wrongfully  in  possession  of  the  premises,  even  by  pulling 
down  the  building  thus  wrongfully  occupied  by  such 
person.  Notice  should  first  be  given/'  Where  a  purchaser 
pays  for  land,  but  does  not  take  the  deed,  he  does  no-t 
become  seized,  but  only  acquires  an  equitable  interest, 
which  he  must  enforce  in  equity.  An  action  of  ejectment 
includes  trespass,  and  the  alleged  trespasser  may  assert 
title  in  himself." 

It  is  the  better  rule  not  to  use  force.  The  courts  fur- 
nish ample  remedies  for  the  regaining  of  possession  of 
lands  wrongfully  withheld." 

Possession  by  the  guardian  of  a  female  is  sufficient  for 
all  the  rights  and  equities  of  the  ward/'  A  person  coming 
into  possession  under  a  will  cannot  obtain  a  right  of  pos- 
session adverse  from  others  claiming  under  the  same  will  ; 
possession  as  to  them  is  fiduciary.  As  a  general  rule,  a 
person  in  possession  in  good  faith,  though  wrongfully  in 
possession,  is  entitled  to  compensation  for  improvements 
upon  the  premises."  If  he  improves,  knowing  the  land  is 
not   his,  the  improvements   are   his   loss.     Persons   who 

42  Burling  v.  Read,  ii  Q.  B.  904  ;  Hyat  v.  Wood,  4  Johns.  150. 
See  16  Johns.  200 ;  8  Wend.  560 ;  4  Den.  449  ;  17  Id.  256 ;  i  Johns. 
Cas.  123;  13  Pick.  39;  3  L.  &  Eq.  Rep.  217  ;  7  Ind.  627  ;  5  West 
Law.  Mo.  80;  67  111.  358;  49  Barb.  175;  4  Johns.  150;  41  111.  314; 
14  Wend.  239;  15  Barb.  594. 

43  Jackson  v.  Seelye.  16  Johns.  197  ;  explained  in  16  Pet. 
57.  See  3  Johns.  216;  11  Id.  91  ;  4  Com.  Dig.  131.  Jackson  t/. 
Seelye  is  cited  in  6  Cow.  736  ;  9  Id.  269  ;  3  Wend.  651  ;  7  Id.  379 ; 
9  Id.  202 ;  43  N.  Y.  158  ;  12  Barb.  655  ;  64  How.  Pr.  267 ;  25  Minn. 
118;  14  Id.  430;  3  Mas.  363. 

44  N.  Y.  Code  Civ.  Pro.  §  2233:2  Edm.  523;  73  N.  Y.  529; 
43  N.  Y.  152;  24  Barb.  16;  17  Wend.  257;  37  N.  Y.  252;  15  Barb.  590; 
1 1  Pick.  387. 

45  Davis  V.  Rhame,  i  McCord   Ch.  191. 

46  Barlow  v.  Bell,  i   A.  K.  Marsh.  246. 


POSSESSION.  6t 

come  into  possession  of  land  pendoite  lite  claiming  title  t(v 
it  under  the  parties  to  the  bill,  or  some  of  them,  stand  in 
the  same  predicament  with  those  whom  they  represent  in 
point  of  interest."  The  possession  of  an  agent  or  bailee 
is  not  adverse  until  after  demand.^*  It  has  also  been  held 
that  a  mere  contract  for  the  sale  of  land  does  not  give 
the  purchaser  right  of  possession/^  Where  the  vendee 
of  land  is  in  possession  under  a  parol  agreement,  ren- 
dered valid  by  part  performance,  the  vendor  cannot,  by  a 
subsequent  contract  of  sale,  to  which  such  vendee  is  not 
a  party,  take  away  the  rights  of  the  latter  under  his  con- 
tract, or  burden  them  with  onerous  conditions/"  The 
possession  of  land  occupied  by  a  highway  is  in  the  owner 
subject  to  the  use  of  the  public  for  traveling.  Such  owner 
may  maintain  an  action  against  any  one  who  appropriates 
to  himself  any  portion  of  such  highway.^' 

The  lowest  and  most  imperfect  title  to  land  is  the 
naked  possession  thereof  Naked  possession  is  the  actual 
occupation  of  the  estate  without  the  right  to  do  so,  or 
right  to  the  property  subject  to  controversy,  until  the 
lawful  owner  asserts  his  rights  to  the  possession  is  deemed 
prima  facie  evidence  of  title/^ 

A  lease  of  real  estate  to  take  effect  or  commence  on 
a  certain  future  day,  with  an  agreement  to  give  posses- 
sion, entitles  the  lessee  to  possession  upon   that  day,  and 


*^  Tongue  v.  Mortin.  6  Har.  &  J.  21, 

*^  Lever  t/.  Lever,  i  Hill  Ch.  G"]. 

«  Eggleston  v.  N.  Y.  &  H.  R.  R.  Co.,  35  Barb.  162, 

5f>  Merrithew  v.  Andrews,  44  Barb.  200. 

51  Cowen's  Treatise,  §  521.  See  9  Ham.  165  ;  44  Vt.  49  ;  8  Am. 
R.  363;  16  N.  Y.  97  ;  31  Id.  151  ;  II  Barb.  390;  27  Id.  543  ;  15  Johns. 
447  ;  20  Id.  743  ;  20  Wend.  1 21  ;  6  Mass.  454  ;  6  Pet.  498  ;  9  Iowa, 
45o»  594;  16  Ind.  338   ;  5  Wis.  27  ;  28  Conn.   165. 

52  Cowen's  Treatise,  §  722  ;  2  Blacks.  Com.  195  -  199  ;  i  Ins.  345. 


62  THE    LAW    OF    PARTITION. 

an  entry  is  not  necessary  that  he  may  maintain  an  action 
for  possession.  "  Possession  of  sub-tenant  is  the  posses- 
sion of  the  tenant.  Possession  of  land  is  constructive 
notice  to  a  purchaser,  mortgagee  or  others  of  the  occu- 
pant's title  and  equities,  but  to  act  as  such  constructive 
notice  there  must  be  actual  occupation,  or  an  open,  visi- 
ble use  and  improvement  of  the  premises.  "  When  the 
possession  of  property  is  shown  to  be  equally  consistent 
with  an  outstanding  title  in  a  third  person,  as  with  title 
in  one  having  possession,  no  presumption  of  ownership 
arises  simply  from  such  possession.'^ 

Cowen  defines  constructive  possession  as  follows : 
"Where  the  owner  of  property  in  actual  possession  of 
another,  has  the  right  to  reclaim  it  immediately,  he  has 
the  constructive  possession  ;  as  where  A  in  York  sells  or 
gives  to  B  a  chattel  which  is  in  London,  B  has  a  right  of 
action  against  any  one  who  injures  it,  for  which  he  may 
maintain  an  appropriate  action."'® 

This  may  be  termed  a  fair  definition,  and  applicable  to 
real  property  as  well  as  personal.  Possession  may  be 
actual,  or  it  may  be  a  right  that  one  has  who  is  not  in 
actual  control  or  occupancy.  It  may  be  a  right  that  is 
not  acquired.     It  may  be  a  right  that  one  is  to  have  at  a 


53  Trull  V.  Granger,  8  N.  Y.  115. 

54  McAdam  on  Landl.  &  Tenant,  §  81  ;  15  N.  Y.  354  3  Paige, 
421  ;  43  Me.  519  ;  20  N.  Y.  400  ;  5  Lans.   160. 

55  Cowen  Treatise.  §  1493;  Rawley  v.  Brown,  71  N.  Y.  85  ; 
citing  60  N.  Y.  221  ;  6  Lans.  180;  45  Barb.  304  ;  3  Hill,  90  ;  62  N.  Y. 
I  ;  18  How.  424 ;  45  N.  Y.  549 ;  21  Barb.  333 :  i  Greenl.  Ev.  §  34  ;  1 5 
Barb.  595  ;  53  Id.  262. 

56  Cowen's  Treatise,  §  564.  See  Chitty  PI.  129  ;  3  Levy, 
37;  7  Cow.  735;  10  Wend.  349;  27  N.  Y.  277;  13  Hun, 
26;  41  Penn.  291  ;  6  Barb.  79;  10  Wend.  349;  15  Id.  631  ;  8  Barb. 
213:5  Denio,  527:3  Wend.  280:4  N.  Y.  183;  20  Johns.  465  ; 
14  Wend.  201. 


POSSESSION.  63 

future  time,  but  it  is  a  possession  -recognized  in  law,  and 
protected  by  the  courts  of  law.  There  must  be  either 
actual  or  constructive  possession  or  there  can  be  no  par- 
tition. 

Note.— Examine  66  Barb.  386  ;  15  N.  Y.  354  ;  12  Ohio  N.  S. 
131  ;  I  Oregon,  300;  20  111.  59  ;  72  N.  Y.  160;  5  Barb.  51  ;  3  Hill, 
330;  2  Hilt,  550  ;  55  N.  Y.  280  :  3  J.  J.  Marsh.  278  ;  4  Rand.  58  ;  i 
Dana,  92. 


CHAPTER  VI. 

ADVERSE   POSSESSION. 

Adverse  possession  is  the  enjoyment  of  land,  or  such 
estate  as  lies  in  grant,  under  such  circumstances  as  indi- 
cate that  such  enjoyment  has  been  commenced  and  con- 
tinued under  an  assertion  or  color  of  right  on  the  part 
of  the  possessor.^  When  such  possession  has  been  actual 
and  has  been  adverse  for  twenty  years,  of  which  it  is  the 
duty  of  the  jury  to  judge  from  the  circumstances,  the 
law  raises  the  presumption  of  a  grant.^  This  arises  only 
when  the  use  or  occupation  would  otherwise  have  been 
unlawful/ 

It  is  not  necessary  that  there  should  be  a  rightful 
title  to  constitute  an  adverse  possession.  But  it  must  be 
a  possession  under  the  color  and  claim  of  title,  and 
exclusively  of  any  other  right/  To  maintain  a  title  on  a 
claim  of  adverse  possession,  such  possession  must  be 
adverse  at  its  first  commencement,  and  continue  so  unin- 

1  3  East,  394 ;  i  Pick.  466  ;  3  Penn.  1 32  ;  8  Conn.  440 ;  9  Johns. 
174;  43  Ala.  643;  9  Johns.  174. 

2  Angell  on  Waterc.  85. 

3  3  Me.  120;  6  Cow.  617-677;  Id.  589;  4  Serg.  &  R.  456;  5 
Pet.  402. 

^  Smith  ?/.  Burtis,  9  Johns.  174  ;  citing  6  East,  80;  Co.  Litt. 
374a  ;  2  Caines,  129  ;  8  Johns.  84  ;  9  Id.  TT. 

[64] 


ADVERSE    POSSESSION.  ■  65 

terruptedly  for  at  least  twenty  years.'     To  give  rise  to 
title,  such  possession  must  be  actual,  definite,  notorious, 
continued,   adverse,  exclusive,   and    with   an    intent    to 
claim  ownership  by  him  who  asserts  the  title  by  posses- 
sion.   The  time  which  possession  must  continue  is  usually 
fixed  by  statute.'     It  may  be  in  a  series   of  individuals, 
holding  in  privity  of  estate  with   each  other,  or  with  the 
one    who  claims  title    by  possession.'     Where    one    who 
enters  upon  land  under  an  assessment  lease  subsequently 
grants  the  land  in  fee  to  another,  who  enters  and  holds 
under  that  grant,  claiming  title,  the  possession  is  adverse 
to  that  of  the  owner  of  the  reversion,  and  a  conveyance 
from  the  latter  is  void.  Entry  and  possession  under  a  deed 
without  right  is  under  color  of  title,  and  is  adverse  pos- 
session.* 

If  the  actual  and  legal  owner  establishes  his  title,  his. 
adversary  must  show,  by  strict  and  positive  proof,  that  his. 
title  and  possession  are  adverse  to  the  title  and  right  of 
possession  of  such  actual  and  legal  owner.^  Title  must 
be  proved  to  render  void  a  deed  because   of  possession   of 


»  Brundt  7/.  Ogden,  i  Johns.  156.  See  :,  Caines,  224.  See 
vol.  2,  page  526,  court  of  errors. 

6  Robinson  Elementary  Law,  1875,  page  22,  1882,  pp.  78-79;  3 
Washb.  Real.  Prop.  vol.  2,  ^  2  ;  24  Wend.  587. 

7  Jackson  v.  Ellis,  13  Johns.  118.  See  18  Johns.  40;  5  Cow. 
483;  9  Johns.  174;  I  Wend.  341  ;  12  Id.  602;  3  Hill,  513;  5  Cow. 
74 ;  7  Cow.  323 ;  8  Id.  589 ;  13  Johns.  499 ;  5  Cow.  346  ;  7  Id.  353  ; 

1  Id.  276  ;  8  Wend.  440;  6  Cow.  617  ;  7   Wend.  62  ;  12  Johns.  365: 

2  Johns.  230;  lold.  475  ;  13  Id-  513;  23  Wend.  316  ;  9  Cow.  653. 

8  Sands  v.  Hughes,  53  N.  Y.  287  ;  citing  5  Cow.  123;  7  Id.  323; 
6  Wend.  233  ;  4  Den.  431  ;  4  Johns.  402  ;  13  Barb.  147  ;  6  Cash.  34; 
3r  Penn.  St.  94;  12  Johns.  452  ;  13  Id.  406  ;  24  Wend.  87  ;  22  N.  Y. 
170;  24  Wend.  587;  9  Cow.  558  ;  13  Johns.  118  ;  18  Id.  355. 

"^  Tylort/.  Hudorn,  46  Barb.   464.  See  9  Wend.  520;  3   Johns. 
Cases,  124;  9  Johns.  163;  36  N.  Y.  643;  22  Id.  177;  13  Barb.  147  ;  5 
Cow.    128. 
5 


66  THE    LAW    OF    PARTITION. 

the  land  by  another.'"  A  title  set  up  as  adverse  to  an 
established  legal  title  must  be  equal  to  it  in  character  to 
render  void  a  deed.  "  The  title  from  the  lease  was  sub- 
ordinate to  the  legal  title,  though  adverse  possession 
existed.*^ 

The  rule  above  referred  to  relative  to  one  holding  un- 
der an  assesment  lease,  applies  only  where  the  conven- 
tional relation  of  landlord  and  tenant  exists,  and  some  rent 
or  return  is  in  fact  reserved  to  the  former,  and  not  where 
the  relation  arises  by  the  mere  operation  of  law.  It  is 
founded  upon  the  acknowledgment  of  title  in  the  lessor, 
which  is  implied  from  the  acceptance  of  the  lease,  and 
the  payment  of  rent  and  the  confidence  reposed  by  the 
lessor  in  the  lessee,  to  whom  the  possession  of  the  land  is 
intrusted,  and  where  there  is  a  valid  assessment  or  tax 
lease  outstanding,  the  statute  of  limitations  will  not  run 
during  the  term  against  the  reversioner  or  his  heirs,  for  the 
reason  they  are  not  entitled  to  the  possession.  Until 
they  are  entitled  to  enter,  the  statute  will  not  run.  It  will 
begin  to  run  only  from  the  expiration  of  the  term.  " 

There  is  no  rule  which  prevents  a  hostile  title  being 
acquired,  or  an  adverse  possession  being  gained  during  the 
running  of  an  assessment  lease,  which  possession  would 
ripen  into  title  in  twenty  years  after  the  end  of  the  term.* 

10  Crary  v.  Goodman,  22  N.Y.  176  ;  Fish  v.  Fish,  39  Barb,  513; 
53  Id.  247  ;  33  N.  Y.  658  ;  5  Wend.  532. 

11  Livingston  v.  Peru  Iron  Co.,  9  Wend.  516.  See  i  Abb.  Pr. 
N.  S.  Ill  ;  i7Barb.  667;  i9ld.  651  ;  5  Cow.  74;  Willard  on  R.  E.  356; 
53  Barb.  248. 

12  Legett  7/.  Rogers,  9  Barb.  411.  See  46  Barb.  464  ;  Laws  1816, 
ch,  115. 

13  Jackson  v.  Shoemaker,  4  Johns.  402.    See  6  Cush.  34. 

*  Statute  of  Limitations  does  not  rtin  against  reversioner  or 
remainderman,  till  after  the  determination  of  the  particular  estate^ 


ADVERSE    POSSESSION.  67 

A  possession  and  claim  of  land  under  an  executory 
contract  of  purchase,  is  not  such  an  adverse  possession 
as  will  render  a  deed  from  the  true  owner  void.  Nor  is  it 
such  adverse  possession  as  if  continued  for  twenty  years 
will  bar  an  entry  within  the  statute  of  limitations,  and  is 
in  no  sense  adverse  as  to  the  one  with  whom  the  contract 
is  made.  "  There  must  be  a  claim  of  entire  title,  with  no 
admission  of  higher  title.  ^' 

Possession  of  land  by  a  purchaser  under  a  deed  for  the 
entire  lot,  given  without  right  to  the  grantor,  is  adverse 
to  the  rightful  owners,  though  tenants  in  common  with 
the  grantor  ;  and  a  subsequent  deed  executed  by  them 
during  such  adverse  possession  is  inoperative  and  void, 
and  subsequent  releases  by  them  to  the  grantor  of  the 
defendant,  or  the  person  under  whom  he  derives  title, 
inure  to  the  benefit  of  the  defendant.  A  person  in  pos- 
session of  land,  claiming  title,  may  purchase  in  an  out- 
standing title  to  protect  the  possession.  ^^ 

Adverse  possession  is  a  legal  idea,  admits  of  a  legal 
definition,  of  legal  distinctions,  and  is  correctly  laid  down 
as  a  question  of  law,  and  may  be  set  up  against  any  title 
whatsoever,  either  to  make  out  a  title  under  the  statute 
of  limitations,  or  to  show  the  nullity  of  a  conveyance  ex- 
ecuted by  one  out  of  possession.  ''^  The  common  law 
generally  regards  disseizin  as  an  act  of  force,  and  always 
as  a  tortious  act,    yet  out  of  regard  to  having  a  tenant  to 

See  4  Johns.  390  ;  8  Id.  262 ;  10  Bosw.  100 ;  17  Abb.  Pr.  1 17;  37  Miss. 
164  ,  22  N.  H.  491  ;  29  Ga,  355  ;  50  Vt.  166  ;  i  Head,  276  ;  40  III.  260. 

'3  Jackson  v.  Johnson,  5  Cow.  74.  See  i  Cow.  610  ;  18  Johns. 
488  ;  I  Id.  156  ;  I  Cow.  605. 

^*  Smith  V.  Burtis,  9  Johns.  180,    ante. 

^^  Jackson  v.  Smith,  13  Johns.  406;  citing  10  Johns.  166  ;  12 
Id. 490  ;8  Id.  139  ;  5  Id.  489. 

^^  Jackson  v.  Huntington,  5   Pet.  402. 


68  THE    LAW    OF    PARTITION. 

the  precipe,  and  one  promptly  to  do  service  to  the  land,  it 
attaches  to  it  a  variety  of  legal  rights  and  incidents,  and 
if  there  be  a  tenancy  in  common,  the  law  appears  to  be 
definitely  settled  in  New  York  that  the  grantee  of  one 
tenant  in  common  for  the  whole  entering  on  such  convey- 
ance, may  set  up  the  statute  against  his  co-tenants 
in  common. 

Where  the  defendant,  having  purchased  a  lot  of  land, 
and  received  a  deed  for  the  whole  lot,  in  which  ^he 
grantor  stated  himself  to  be  the  heir  of  the  patentee, 
and  he  entered  into  possession  under  that  deed,  and  it 
afterwards  appeared  that  the  grantor  had  title  to  one- 
ninth  of  that  lot  only  as  a  tenant  in  common,  but  that 
he  must  be  deemed  to  have  entered  under  his  deed,  as 
sole  owner  in  fee  of  the  whole  loL  Possession  of  land 
by  the  purchaser  under  a  deed  for  the  entire  lot,  given 
without  right  in  the  grantor,  and  a  subsequent  deed 
executed  by  them  during  such  adverse  possession,  is 
inoperative  and  void^  and  subsequent  releases  by  them  to 
the  grantor  of  the  defendant  or  the  person  under  whom 
he  derives  title,  inures  to  the  benefit  of  the  defendant.  " 

There  must  be  title  somewhere  to  all  land  in  this 
country,  either  in  the  government  or  in  some  one  deriving 
title  from  the  government,  State  or  national.  Any  one  in 
possession  with  no  claim  to  the  land  whatever,  must,  in 
presumption  of  law,  be  in  possession  in  amity  with  and 
in  subservience  to  that  title.  Where  there  is  no  claim  of 
right,  the  possession  cannot  be  adverse  to  the  true  title. 
Such  was  the  rule  given  in  1854  by  the  court  of  appeals  in 

17  Jackson  v.  Smith,  13  Johns.  406;  citing  10  Johns.  166;  12 
Id.  490 ;  8  Id.  139.  A  grant  of  land  held  adversely  is  void.  15 
Wend.  171  ;  5  Id.  532. 


ADVERSE    POSSESSION.  69 

Virginia.  "  The  court  there  said  :  "■  An  entry  by  one 
upon  land  in  possession,  actual  or  constructive,  of  an- 
other, in  order  to  operate  as  an  ouster,  and  gain  possession 
to  the  parties  entering,  must  be  accompanied  by  a  claim 
of  title."  "  The  doctrine  of  adverse  possession  is  to  be 
taken  strictly,  and  must  be  made  out  by  clear  and  positive 
proof,  and  not  by  inference.  Every  presumption  is  in 
favor  of  possession  in  subordination  of  title  to  the  true 
owner  ;  and  if  a  subsequent  purchaser  has  notice  at  the 
time  of  his  purchase  of  a  prior  unrecorded  deed,  it  is  the 
same  to  him  as  if  such  deed  had  been  recorded;  and  if  the 
agent  of  such  subsequent  purchaser,  at  the  time  of 
making  the  purchase,  knows  of  the  prior  unrecorded 
deed,  it  is  the  same  as  notice  to  his  principal.  "  Pos- 
session, without  claim  of  title,  is  not  adverse,  but  is 
deemed  the  possession  of  the  owner.  If  a  man  have  title 
as  tenant  in  common  and  be  in  possession,  he  is  pre- 
sumed to  hold  for  himself  and  his  co-tenants  :  but  such 
possession  may  be  rebutted  by  proof  of  acts  or  declara- 
tions indicating  an  intention  to  exclude  his  co-tenants, 
such  as  a  disavowal  of  his  holding  as  a  tenant  in  common  : 
and  if  he  in  fact  keeps  out  his.  co-tenants,  such  acts  and 
declarations  constitute  an  ouster,  and  his  possession  from 
that  time  becomes  adverse  within  the  meaning  of  the 
statute.  Neither  fraud  in  obtaining  or  continuing  the 
possession,  or  knowledge,  on  the  part  of  the  tenant,  that 
his    claim    is    unfounded,    wrongful    and    fraudulent   will 

^^  Kencheloe  v.  Tracewell,  1 1  Gratt.  605. 

19  Society,  &c.  v.  Town  of  Pawlett,  4  Pet.  504  ;  Ewing  v.  Bur- 
nett. II  Pet.  52;  Harvey  t/.  Griswold,  2  Wall.  238. 

2*^  Jackson  v.  Sharp,  9  Johns.  163  ;  citing  S  Johns.  220;  3  Atk. 
646  ;  I  Ves.  64  ;  Amb.  436  ;  13  Ves.  120;  cited  in  21  N.  Y.  120  ;  29 
Wis.  252;  40  Mich.  541  ;  42  Ind.  loi  ;  distinguished  in  10  Johns. 
166. 


JO  THE    LAW    OF    PARTITION. 

excuse  the  negligence  of  the  owner  in  not  bringing  his 
action  within  the  prescribed  period  ;  nor  will  his  ignor- 
ance of  the  injury,  until  the  statute  has  attached,  excuse 
him,  though  such  injury  was  fraudulently  concealed  by 
the  contrivance  of  the  wrongdoer.  A  possession  to  be 
adverse  must  be  inconsistent  with  the  title  of  the  claim- 
ant who  is  out  of  possession  ;  it  must  be  accompanied 
with  a  claim  of  title  exclusive  of  the  rights  of  others  ;  and 
must  be  accompanied  with  a  claim  of  title  exclusive  of 
the  rights  of  all  others  ;  and  must  be  definite,  notorious 
and  continued  for  the  period  of  twenty  years.  Where 
there  is  an  actual  occupation  of  premises,  an  oral  claim  is 
sufficient  to  sustain  the  defense  of  adverse  possession  ;  it 
is  only  where  a  constructive  adverse  possession  is  relied 
on,  that  the  claim  must  be  founded  on  color  of  title  by 
deed  or  other  documental  semblance  of  right." 

Claim  or  color  of  title  is  necessary  to  establish  adverse 
possession." 

21  Humbart  v.  Trinity  Church,  24  Wend.  5S7  ;  citing  Story 
Eq.  PI.  §  484;  5  Barn.  &  C.  149;  7  Dowl.  &  R.  729  ;  5  Wend.  30  ; 
17  Id.  202  ;  2  Mumf.  511  ;  3  Murph.  115,  118,  278;  539;  4  Bligh 
P.  C.  Old  Series,  i  ;  8  Cow.  589  ;  i  Irish  T.  R.  332,  340;  2  Grah. 
His.  U.  S.  255  ;  19  Johns.  372.  On  fraudulent  entry  and  adverse 
possession,  cited,  4  Sandf.  Ch.  739  ;  22  N.  Y.  177  ;  34  Barb.  63  ;  12 
Abb.  Pr.  278;  4  Ben.  466  ;  63  Mo.  246  ;  41  N.  J.  L.  541;  distin- 
guished in  43  N.  Y.  439  ;  affirming  7  Paige,  195. 

Tenant  in  common  presumed  to  hold.  16  Hun,  92  ;  23  Cal. 
247  ;  24  Id.  376. 

22  Grant  v.  Winborne,  2  Hayw.  57.  See  2  Wall.  328  ;  3  Woodb. 
&  M.  538  ;  4  Wash.  C.  Ct.  609  ;  i  Paine,  457 ;  5  Pet.  485  ;  i  Wheat. 
292  ;  10  Pet.  177  ;  16  Id.  25  ;  8  Id.  244  ;  18  How.  50;  5  Pet.  402; 
13  How.  472;  Hempst.  624;  4  McLean,  489;  11  How.  414  ;  9 
Wheat.  541  ;  5  Blatchf.  481  ;  i  Sawyer,  15,  227;  5  Biss.  177;  94 
U.  S.  (4  Otto)  6 ;  1 1  Gill  &  J.  371  ;  9  Serg.  &  R.  26  ;  i  Paine  C.  Ct. 
457  ;  2  Wall.  328  ;  1 1  Gratt.  605  ;  1 1  Pet.  41  ;  8  Cow.  589  ;  1 5  Ga. 
336;  2  Bailey,  603;  i  B.  Mon.  364;  8  Shep.  350,  240;  6  Id.  387;  5 
Id.  210;    5  Barr,  103;    6  Burr.  210;    9  Mete.  418  ;    2  Spear,  288  ;  3 


ADVERSE    POSSESSION.  7 1 

It  is  not  the  law  that  there  should  be  a  rightful  title,  and 
only  necessary  that  possession  be  taken  under  color  or 
claim  of  title,  and  continued  for  the  requisite  period,  to 
bar  an  action  under  the  statute  of  limitations.  It  is  im- 
material whether  the  title  be  defective  or  not,  or  whether 
the  occupants  make  color  under  a  written  or  parole  con- 
tract, or  even  any  contract  at  all.  An  adverse  possession 
for  twenty  years,  under  claim  or  color  of  right,  gives  a 
title.  It  is  not  necessary,  to  constitute  such  adverse 
possession,  that  it  should  be  taken  under  a  good  or 
rightful  title,  and  if  on  the  trial  the  defendant  shows 
that  he  took  possession,  claiming  under  a  deed,  he  is  not 
bound  to  produce  the  deed,  though  called  for  by  the 
plaintiff,  but  he  may  rely  on  his  adverse  possession." 

A  written  conveyance  will  support  an  adverse,  how- 
ever worthless  the  supposed  title  may  be.  A  deed 
purporting  to  be  executed  by  virtue  of  a  power  of 
attorney  from  the  owner  of  the  land,  which  power  is  not 
proved,  affords  sufficient  color  of  title  on  which  to  found 
an  adverse  possession,  providing  there  has  been  a  good 
constructive  occupation  under  it.^*  One  tenant  in  common 
claiming  title  to  the  whole  under  a  warranty  deed  from  a 

Conn.  403;  2  Hayw.  69;  i  Har.  &  McH.  151  ;  53  N.  Y.  296;  7  Barb, 
loi  ;  8  Id.  156,  26  Id.  402  ;  33  Id.  498  ;  64^.526;  3Abb.  N.  C. 
346;  i"]  Sup.  199;  28  Mich.  331. 

•  A  religious  corporation  may  acquire  title  through  adverse 
possession.  Bogardus  v.  Trinity  Church,  4  Paige,  178.  See  4 
Sandf.  Ch.  633;  12  Wend.  602. 

''Conveyance  by  tenant  in  common.  See  10  Johns.  166;  12 
Id.  448  ;  13  Id.  406  ;  3  Paige,  445  ;  9  Cow.  530. 

23  Jackson  v.  Wheat,  18  Johns.  40;  citing  10  Johns.  356; 
3  Johns.  Ch.  129  ;  6  East,  80.  See  99  U.  S.  168  ;  34  Wis.  433  ;  10 
Barb.  256. 

24  Munro  v.  Merchant,  28  N.Y.  9.  See  8  Cow.  5S8  ;  33  Barb. 
491. 


72  THE    LAW   OF    PARTITION. 

stranger,  constitutes  adverse  possession.-*  Where  one 
tenant  in  common  conveys  the  whole  property  when,  in 
fact,  he  only  owned  a  portion, — Held,  that  the  possession 
of  the  grantee  was  adverse  to  the  rightful  owners.^^  Pos- 
session, without  claim  of  title,  is  not  adverse,  but  is 
deemed  the  possession  of  the  owner.  The  quality  and 
extent  of  the  right  acquired  by  possession  of  lands 
depends  upon  the  claim  accompanying  it.  Only  to  the 
extent  of  the  claim  will  the  presumption  of  the  law  go 
in  favor  of  the  right.  Possession,  to  be  adverse,  so  as  to 
ripen  into  title  when  long  enough  continued,  must  be 
accom'panied  by  a  claim  of  title  fee.  A  claim  simply  of 
an  unexpired  term  for  years  is  not  in  hostility,  but  in 
accord  with  the  true  title." 

Possession  twenty-seven  years  by  one  tenant  in 
common,  although  during  all  that  time  the  right  of  the 
co-tenant  had  not  been  recognized,  was  held  not  to  be 
sufficient  to  authorize  a  jury  to  presume  an  ouster,  where, 
before  twenty-five  years  had  elapsed,  the  co-tenant  had 
made  an  actual  entry  upon  the  land  and  was  forcibly 
expelled.^'  A  tenant  in  common  may  oust  his  co-tenant 
and  acquire  title  through  adverse  possession.^* 

If  the  claim  of  adverse  possession  is   under  a   convey- 

25  Siglar  V.  Van  Ripper,  lo  Wend.  414. 

26  Jackson  z/.  Wheeler,  10  Johns.  166.  See  12  Johns.  488 ;  13 
Id.  406  ;  3  Paige,  445  ;  9  Cow.  530. 

27  Bedell  v.  Shaw,  59  N.  Y.  46.  See  9  Johns.  163,  note ;  44  Cal. 
471  ;  39  Wis.  538 ;  47  Ind.  25  ;  60  Mo.  33 ;  40  Cal.  33  ;  38  Conn.  5 1 3 
36  Vt.  69. 

28  Northorp  v.  Wright,  24  Wend.  221.  See  7  Hill,  476  ;  cited 
in  63  N.  Y.  473. 

29  Brackets  v.  Norcross,  i  Greenl.  89.  See  9  Watts,  363;  10 
Pick.  161  ;  18  Ala;  50;  27  Tex.  355:67  N.  C.  160 ;  13  Me.  337 ;  46 
Ga.  9  ;  10  N.  H.  242  ;  43  N.  Y.  152 ;  18  111.  238 ;  48  Ind.  367  ;  15 
Ala.  363 ;  32  Cal.  481  ;  33  Vt.,  195  ;  10  Mass.  464. 


ADVERSE    POSSESSION.  73 

ance,  the  conveyance  must  have  a  grantor  and  grantee, 
a  description  of  the  lands,  and  apt  words  of  conveyance, 
and  be  properly  executed,  to  convey  title.'"  The  adverse 
possession  must  be  hostile  in  its  inception." 

A  purchaser  of  land  is  entitled  to  the  benefit  of  his 
purchase.  And  if,  after  the  purchase  and  before  the 
record  of  his  deed,  he  has  notice  of  a  prior  conveyance 
of  the  same  premises,  such  notice  does  not  destroy  his 
deed,  providing  it  be  first  recorded/'  But  notice  of  an 
unrecorded  deed  before  the  purchase  destroys  the  effect  of 
a  subsequent  deed."  When  the  possession  of  one  party 
is  consistent  with  the  title  of  the  other, — as  where  the 
rents  of  a  trust  estate  were  received  by  a  cestui  que  trust 
for  more  than  twenty  years  after  the  creation  of  the  trust, 
without  any  interference  of  the  trustee,  such  possession 
being  consistent  with  and  secured  to  the  cestui  qui  trust 
by  the  terms  of  the  deed, — the  receipt  was  held  not  to  be 
adverse  to  the  title  of  the  trustee."  Where  the  occupant 
acknowledges  the  claimant's  title  through  a  lease,  pay- 
ment of  rent,  or  otherwise,  there  is  no  adverse  pos- 
session.'^ 

The  enjoyment  of  land,  or  such  estate  as  lies  in  grant, 
under  such  circumstances  as  indicate  that  such  enjoyment 
has  been  commenced  and  continued  under  an  assertion  or 

^  Dufour  V.  Campane,  ii  Martin,  715.  See  4  Martin  N.  S. 
224;  35  111.  392;  18  Iowa,  261. 

31  Brandt  v.  Ogden,  i  Johns.  156;  25  Conn.  321;  29  Conn. 
391- 

3-  Ely  V.  Scofield,  35  Barb.  330. 

33  Jackson  v.  Elston,  12  Johns.  452.  See  10  Johns.  457:4 
Wend.  585  ;  19  Wend.  339  ;  28  Vt.  364  ;  8  Vt.  473 ;  44  Barb.  166  ;  47 
N.  H.  532  ;  46  Me.  438. 

3*  69  Mo.  117. 

3^  See  B.  &P.  542;  8B.  &C.  717;  2  Bouv.  Inst.  2193,  2194, 
2351  ;  Bouv.  Law  Die.  128. 


74  THE    LAW    OF    PARTITION. 

color  of  right  upon  the  part  of  the  possessor,  is  adverse 
possession.'"^  An  adverse  user  is  such  a  use  of  the  prop- 
erty as  the  owner  himself  would  make,  asking  no  per- 
mission and  disregarding  all  other  claims  to  it  so  far  as 
they  conflict  with  the  use  and  enjoyment  of  the  property.'" 
Adverse  possession,  uninterrupted  and  notorious,  for  the 
statutory  time,  under  a  claim  of  title  in  fee,  vests  the  title 
to  the  land  claimed  in  the  claimant  or  adverse  holder,  as 
effectually  as  though  such  title  had  been  acquired  by 
deed.?*  Adverse  possession  is  made  out  by  the  co-exist- 
ence of  two  distinct  ingredients.  The  first  is  color  of  title, 
the  second,  such  possession  under  the  color  of  title  as  will 
be  adverse  to  the  right  of  the  true  owner  :  whether  these 
two  essentials  exist  is  purely  a  question  of  law,  to  be  de- 
termined by  the  court.  The  facts  upon  which  the  claim 
is  founded  are  for  the  jury.'^  In  considering  the  effects  of 
acts  which  are  claimed  to  be  such  an  adverse  possession 
as  may  mature  into  title,  reference  should  be  had  to  the 
character  of  the  property  and  the  uses  to  which  it  would 
be  ordinarily  applied,  for  the  purpose  of  ascertaining  with 
what  mind  it  was  so  possessed  on  the  one  side,  and  such 
possession  was  permitted  on  the  other.'*"  In  this  case, 
Corning  v.  Troy  Iron  Co.,  the  court  decided  that  where 
the  plaintiffs  allowed  their  land  to  remain  vacant  for  many 
years,  its  principal  value  to  them  being  the  right  of  flow- 
ing its  banks  in  the  use  of  adjacent  water-rights,  which 
use  was  continuously  exercised  by  them,  the  fact  that  the 

36  Campbell  v.  Wilson,  3  East,  294;  9  Johns.  174. 
3'^  Blanchard  v.  Moulton,  63  Me.  434. 

38  Wall  V.   Shindler,  47  Mo.    282 ;    Cowp.  595  ;  34  Cal.    365  ; 
6  Bush  (Ky.)  47  ;  37  Md.  55. 

39  Baker?:'.  Swan,  32  Md.  355;  47  Miss.  220;  17  Minn.  361. 

40  Corning  v.  Troy  Iron  Co.,  44  N.  Y.  577;    citing   16    N.Y. 
539 ;  35  N.  Y.  113  ;  47  Barb.  287  ;  29  Id.  165. 


ADVERSE    POSSESSION.  75 

defendant  has  been  suffered  during  the  same  time  to  de- 
posit refuse  machinery  and  temporarily  a  few  loads  of 
stone  on  the  premises,  and  to  pass  over  them  habitually 
as  a  convenient  approach  to  its  property,  there  being  no 
inclosure  of,  or  permanent  improvements  on  the  premises, 
is  far  from  sufficient  to  constitute  an  adverse  possession 
by  the  defendant.  Under  such  circumstances,  to  refuse  a 
submission  to  the  jury  of  the  question  of  adverse  posses- 
sion is  an  error. 

It  is  the  general  rule  that  every  possession  of  land  has 
the  presumption  of  right  in  its  favor.'^  This  is  a  presump- 
tion of  law,  and  may  be  contradicted  or  destroyed  by 
proof ;  but  until  it  is  destroyed  the  possession  is  adverse 
to  any  other  claimant.  This  presumption  may  be  de- 
stroyed by  proof  that  the  actual  occupant  has  received  a 
lease  and  that  his  possession  is  by  virtue  of  the  lease  and 
not  by  color  of  title.  Or  it  may  be  destroyed  by  showing 
that  he  has  recognized  the  true  owner  by  paying  him  rent, 
or  by  allowing  the  true  owner  to  occupy  a  part  of  he 
premises  claimed  to  be  adversely  held,  or  by  allowing  the 
true  owner  to  improve  the  premises,  such  as  erecting 
buildings  thereon. 

It  may  be  shown  to  rebut  this  presumption  of  law, 
that  the  occupant  entered  upon  the  premises  without 
pretending  to  any  claim  of  right  whatsoever  ;  in  which 
case  the  law  adjudges  the  possession  to  be  in  subservience 
to  the  legal  owner.'-  Hence  a  claim  of  right  is  necessary, 
not  because  it  is  required  by  statute  but  because  the 
want  of  such  a  claim  is  evidence  sufficient  to  destroy  the 
legal  presumption  that  the  possessor  has  title. 


41  Smith  V.  Lorliard,  lo  Johns.  338. 
*2  Jackson  v.  Thomas,  16  Johns.  293. 


76  THE    LAW    OF    PARTITION. 

Every  possession  not  in  subservience  to  the  title  of  an 
other,  is  adverse,  and  entitled  to  the  peaceful  and  benig- 
nant operation  and  protecting  safeguards  of  the  statute."' 
Wrongful  continuation  of  possession  for  twenty  years 
after  the  expiration  of  a  title  under  which  the  tenant  law- 
fully entered,  constitutes  such  an  adverse  possession  as 
creates  a  bar  to  an  entry,  or  to  an  ejectment."^  An  exclu- 
sive possession  of  one  tenant  in  common  of  all  the  land 
on  the  side  of  a  line  agreed  upon  between  him  and  his 
co-tenants,  for  over  twenty  years  before  suit,  he  paying 
taxes  and  exercising  other  acts  of  ownership,  is  a  bar  to 
his  recovery  of  such  part  by  his  co-tenants.^^  A  person 
seized  in  fee  simple  has  a  constructive  possession  of  the 
premises  of  which  he  is  seized."^ 

The  possession  of  one  who  has  bought  land  uncondi- 
tionally, and  paid  for  it  under  an  agreement  that  a  deed 
shall  be  made,  is  adverse  to  the  vendor.  Such  executed 
contract  is  a  sale,  and  not  merely  an  agreement  to  pur- 
chase."' By  the  law  of  Wisconsin,  occupation  under 
paper  title,  by  mining  operations,  continuous,  visible  and 
notorious,  may  constitute  adverse  possession."' 

To  constitute  adverse  possession,  entry  must  be  made 
with  a  claim  of  title  and  of  possession  ;  and,  after  entry, 
such  claim  cannot  be  enlarged,  except  by  acts  equivalent 

43  La  Frombois  v.  Jackson,  8  Cow.  589.     See  3  Conn.  398 ,  5 
Penn.  St.  327;  60  Mo.  271  ;  8  Kan.  409. 
^  Parker  v.  Gregory,  4  N.  &  M.  308. 

45  Rider  7/.  Mans,  46  Penn.  St.  376. 

46  Lamb  7/.  Burbank,  i  Sawyer,  227.     See  17  Minn.  361. 

47  Ridgeway?/.  Holliday,  59  Mo.  444. 

48  Wilson  V.  Henry,  40  Wis.  594.  When  possession  is  orig- 
inally taken  in  subordination.     See  d'^  Mo.  233. 

Adverse  possession  m  England.  See  2  Bing.  N.  C.  189;  2 
Scott,  276. 


ADVERSE    POSSESSION.  "j"^ 

to  a  new  entry  and  a  new  claim  of  possession.^'  The 
quality  and  extent  of  the  right  acquired  by  possession  of 
lands  depend  upon  the  claim  accompanying  it.  Only  to 
the  extent  of  the  claim  will  the  law  go  to  favor  the 
right."" 

In  Connecticut  it  is  said  that  a  claim  of  ownership  is 
not,  as  matter  of  law,  an  indispensable  element  of  adv^crse 
possession.  In  general,  the  assertion  of  title  is  an  impor- 
tant circumstance,  as  indicating  adverse  possession,  and 
ouster  of  the  real  owner. ^*  As  a  general  rule,  the  posses- 
sion of  one  who  does  not  hold  the  true  title  only  extends 
to  occupancy.  There  must  be  a  claim  to  the  whole. '^^ 
Where  a  party  claims  title  under  the  Illinois  limitation 
laws  he  must  declare  a  title  directly  from  a  specified 
source,  and  by  a  chain,  each  link  of  which  is  a  genuine 
conveyance."' 

In  some  of  the  States,  by  statute,  color  of  title  is  not 
essential  as  a  basis  for  an  adverse  possession  ;  but  in  no 
case  can  there  be  a  constructive  possession  of  land  with- 
out color  of  title."  It  does  not  always  require  a  written 
indorsement  to  constitute  color  of  title. °^  Whatever  instru- 
ment is  relied  upon  as  the  foundation  of  claim  of  posses- 
sion under  color  of  title  must  be  one  purporting  to  convey 
title.      A  sheriff's  deed  which  lacks  a  seal  may  constitute 


4^^  Pepper  v.  O'Dowd,  39  Wis.  538. 

50  Bedell  v.  Shaw,  59  N.  Y.  46. 

51  Johnson  v.  Gorham,  38  Conn.  513. 

52  Crispin  v.  Hannavan,  50  Mo.  536.     See    36  Vt.  69;  40  Cal. 
33  ;  27  La.  Ann.  596. 

Possession  under  executory  contract.     See  66  Barb.  366, 

53  Hedges  v.  Paulin,  5  Biss.  177  ;  6  Wait  Act.  &  D.  441. 

54  Wells  V.  Jackson,  48    N.  H.  491  ;  Jackson  v.  Berner,  48  111. 
203  ;  Beatty  v.  Mason,  30  Md.  409. 

55  Cooper  V.  Ord,  60  Mo.  420. 


^8  THE    LAW    OF    PARTITION. 

a  color  of  title/*      A  sheriffs  deed  under  a  void  sale,"  or 
a  quit-claim  deed  may  be  sufficient/'  or  a  deed  which  lacks 
a  seal/^  or  a  tax  collector's  deed/"     A  written  paper  pur- 
porting to  be  a  will,  proved    before    the    proper    tribunal 
may  give  color  of  title."     But  a  bond    to   give  a  deed  on 
the  payment  of  a   price  does  not  purport  to  convey  title, 
and   cannot   constitute   color  of  title/'     A   deed    which 
purports  to  give  complete  title  may  be    sufficient  to  give 
colorof  title,  although  the  grantor  has   in   fact    only  the 
rights  of  a  mortgagee."     A   conveyance  in   disregard   of 
his  client's  interest  by  an  attorney  who  acquired  title   for 
the  benefit  of  his  client,  not  in  his  own  right,  may  give  an 
innocent  purchaser  for  value,  color  of  title.*'     The  entry 
of  one    without    color   of  title    may    afterwards   become 
adverse,  by  his  acquiring    and    asserting  a  claim    of  title, 
and  may  be    acquired    by  a    deed    of  trust,  though  with- 
out notice."* 

The  question  of  good  faith  of  one  who  holds  by  color 
of  title  depends  upon  the  purpose  with  which  he  has 
acquired  the  title  or  possession.  If  he  knew  the  title 
to  be  worthless  when  he  received  it,  or  that  it  was  in  fraud 
of  the  owner's  rights,  then  it  cannot  be  said  that  he  holds 
in  good  faith.  So  if  the  deed  discloses  facts  on  its  face 
showing  that  it  was  not  legally  made,  or  made  in  fraud, — 

56  Kruse  v.  Wilson,  79  111.  233  ;  Hamilton  v.  Boggess,  63  Mo. 

233. 

57  Fritz  z/.  Joiner,  54  111.  loi. 

58  McCanny  7/.  Higden,  50  Ga.  629. 

59  See  79  111.  233,  65  Mo.  233,  attte. 

60  Rivers  v.  Thompson,  43  Ala.  633. 

61  McConnel  v.  McConnel,  64  N.  C.  342. 

62  Rigor  V.  Frye,  62  111.  507. 

64  Stevens  v.  Brooks,  24  Wis.  326. 

65  Hardin  ?/.  Osborne,  60  111.  93. 

66  Hamilton  v.  Wright,  30  Iowa,  480.     See  40  Iowa,  152. 


ADVERSE    POSSESSION. 


79 


as  where  it  shows  by  its  face  that  it  was  made  on  a  sale 
for  taxes,  before  the  redemption  expired, — this  will  not  pre- 
vent it  being  a  color  of  title,  but  will  destroy  the  presump- 
tion of  good  faith/'     Color  of  title  is  not  necessarily  im- 
paired by  proof  that  the  holder  acquired  the  title  with 
notice  of  the  defects  which  prevent  it  being  regarded  as 
a  good  title,  if  he  is   not   chargeable  with  fraud  or  bad 
faith/*     A  decree  of  partition  or  of  foreclosure  may  be- 
come color  of  title  where  a  proper  party  to  the  action  has 
been  in  good  faith   omitted/'       A  deed   from  a  person 
having  the  authority  to  sell  will  confer  a  color  of  title  for 
the  purpose  of  prescription.     In  Louisiana  if  a  sheriff  has 
authority  to  sell  land   on  execution  and  does  sell  it,  and 
executes  a  deed  to  a  purchaser  in  good  faith,  the  latter 
may,  although  informalities  in  the  sheriff's  proceedings 
set  up  when  sold  to  recover  the  land,  the  prescription  of 
five  years  under  the  statute  of  that  State.'"     If  an  agree- 
ment be  made  with  the  knowledge  of  the  purchaser,  with 
honest  motives,  so  as  to  restrict  competition  at  the  sale, 
it  does  not  render  the  sale  invalid.''     A  deed  by  a  husband 
of  a  life  tenant  made  after  her  death  was   held   under 
peculiar  circumstances  to  be  a  color  of  title."     Where  a 
party  in  possession  of  land,  of  which  his  wife  is  seized,  as 
heir  of  an   undivided  part,  takes  a  quit-claim  deed  from 
one  of  the  other  heirs  who  is  seized  of  an  undivided  fourth 


^"  Hardin  v.  Gouvener,  69  111.  140. 

6«  Russel  V.  Mandell,  73  111.  136,  For  color  of  title  under 
foreclosure,  see  73  111.  121. 

^'^  Rawson  v.  Fox,  65  III.  200. 

■^^  Pikes  V.  Evans,  94  U.  S.  (4  Otto)  6.  See  105  U.  S.  644;  109 
U.  S.  187. 

''I  Marie  z/.  Garrison,  §3  N.  Y.  15.  See  46  N.  Y.  564  ;  7  Ad.  & 
El.  25  ;  94  U.  S.  83. 

■^2  Forest  v.  Jackson,  56  N.  H.  357. 


8o  THE    LAW    OF    PARTITION. 

thereof,  and  who  simply  released  and  quit-claimed  all  his 
right,  title  and  interest,  such  deed  will  constitute  good 
color  of  title  to  the  extent  of  the  grantor's  interest,  but 
no  further." 

What  is  not  Adverse  Possession.  The  very 
essence  of  an  adverse  possession  is  that  the  holder  of 
it  claims  the  right  to  his  possession,  not  under  but  in 
opposition  to  the  title  to  which  his  possession  is  alleged 
to  be  adverse.  So  long  as  he  claims  to  hold  under 
that  title,  his  possession  is  not  adverse  to  it,  and  the 
statute  of  limitations  does  not  run.'^  Ignorance  of  bound- 
ary line  by  two  co-terminous  or  adjoining  proprietors,  with 
an  agreement  that  each  should  possess  to  a  certain  line 
until  the  true  line  is  known,  is  not  adverse." 

Where  one  has  a  right  to  use  land  for  certain  purpo- 
ses his  occupation  of  it  must  be  presumed  prima  facie  to 
be  in  accordance  with  his  legal  right. '^  Possession  of 
land  which  is  incidental  to  the  commission  of  a  trespass 
thereon,  such  as  cutting  timber  on  or  the  unlawful  pastur- 
ing of  another's  land,  is  not  adverse  possession,  and  the 
true  owner  may  maintain  trover  against  the  wrongdoer." 
For  a  person  holding  in  adverse  possession  to  accept  a 
lease  from  the  owner  of  the  title  interrupts  the  running  of 
the  statute  of  limitations.  The  lease,  if  not  void,  creates 
the  relation  of  landlord  and  tenant,  and  during  the  ex- 
istence of  that  relationship  there  can  be  no  adverse  pos- 
session by  the  tenant." 

■^3  Busch  y.  Huston,  75  111.  343, 

74  6  Wait  Act,  &  D.  445  ;  Parish  v.  Coons,  40  Cal.  33. 

■^5  Irvene  v.  Adler,  43  Cal.  559. 

76  Mowe  V.  Stevens,  61  Me.  292. 

77  Austin  V.  Holt,  32  Wis.  478. 

78  Abby  Homestead  Association  v.  Willard,  48  Cal.  614. 


ADVERSE    POSSESSION.  8 1 

An  encroachment  upon  a  highway  regularly  laid  out 
and  established,  by  putting  out  a  fence,  is  not  adverse  pos- 
session.'^ 

Possession  taken  by  a  tenant  under  a  widow  of  a  for- 
mer owner  is  not  adverse  to  the  heirs  of  such  owner/" 
And  where  lands  are  devised  for  life  to  any  one  person, 
with  a  remainder  over  in  fee  to  another,  the  possession  of 
a  third  person  under  the  tenant  for  life  is  not  adverse 
within  the  meaning  of  the  statute  of  limitations,  as 
against  the  remainderman,  until  a  right  of  entry  ac- 
crues." 

Mere  occupancy  of  a  lot  under  claim  of  right,  in  virtue 
of  a  grant  which  does  not  embrace  it,  and  made  by  par- 
ties who  neither  owned  nor  claimed  it,  is  not  enough  to 
defeat  a  transfer  of  title,  on  the  ground  of  adverse  pos- 
session at  the  date  of  the  conveyance.'"  The  occasional 
use  of  lands,  in  the  customary  way,  for  a  particular  pur- 
pose, although  uninterrupted  for  twenty  years,  will  not  be 
adverse  possession.'* 

An  entry  upon  land  once  a  year  for  twenty  years,  and 
the  cutting  and  removal  of  grass  therefrom  by  a  party 
who  has  not  enclosed  or  cultivated  it,  and  where  it  is  no 
part  of  a  known  farm  or  lot  occupied  by  him,  is  not  suffi- 
cient to  confer  title  by  adverse  possession."  A  posses- 
sion of  land  is  not  adverse  so  as  to  render  thereof  void 
for  champerty  under  the  statute  unless  it  be  under  a  claim 

''J  McLelland  v.  Miller,  28  Ohio  St.  488  ;  46  Ind.  15. 

8"  Melvin  v,  Wadell,  75  N.  C.  361. 

^1  Carpenter  v.  Denvon,  29  Ohio  St.  379. 

^2  Laverty  v.  Moore,  33  N.  Y.  658. 

^  Trustees  v.  Kirk,  68  N.  Y.  459.  See  14  N.  Y.  247  ;  17  Wend: 
564;  54  N.  Y.  631  ;  N.  Y.  Code  Civil  Pro.  §83. 

'^  Wheeler  v,  Spinola,  54  N.  Y.  377.  See  10  Barb.  254  ;  i  Cowr. 
276,  605. 

6 


82  THE     LAW    OF    PARTITION. 

of  specific  title.''      Possession    under  license  is   not  ad- 
verse."^ 

Who  may  Acquire  Adverse  Possession.  It  is  a 
general  rule  that  one  who  enters  into  possession  of  land 
in  subordination  to  the  title  of  another  is  estopped  from 
denying-  that  title  while  he  holds  under  it.  Yet  a  trustee 
may  disavow  and  disclaim  his  trust,  a  tenant  may  disclaim 
the  title  of  his  landlord,  and  a  tenant  in  common  the 
title  of  his  co-tenants,  and  drive  the  respective  owners 
or  claimants  to  their  action  within  the  period  of  the 
statute  of  limitations.  So  one  who  has  possession  of 
land  under  an  agreement  to  purchase,  which  contem- 
plates a  continuing  of  right  of  possession  while  the  con- 
tract is  being  performed,  or  an  absolute  right  of  posses- 
sion by  virtue  of  its  performance,  may  on  performance 
deny  the  title  of  the  vendor  and  thereafter  his  possession 
will  be  adverse."  He  may  hold  adversely  as  against  all 
others,'"  and  if  after  taking  possession  under  a  contract 
he  takes  a  deed  from  a  third  party,  and  openly  claims 
under  that,  his  possession  becomes  adverse.''  If  the  ven- 
dor conveys  to  another  in  violation  of  his  contract  the 
first  vendee  is  absolved  and  may  purchase  and  set  up  title 
in  himself."" 

A  married  woman  may  acquire  land  by  adverse  pos- 
session.""     As  a  general  rule,  it  may  be  affirmed  that,   if 

85  Matter  of  Public  Works,  73  N.  Y.  560.  See  67  N.  Y.  132  ; 
7  Wend.  401  ;  55  N.  Y.  446. 

86  73  N.  Y.  205  ;  84  N.  Y,  31 ;  94  N.  Y.  323. 

87  Catlino  v.  Decker,  38  Conn.  262.     See  14  Wend.  227. 

88  Whitney  7/.  Wright,  15  Wend.  171. 

89  Jackson  v.  Denn,  5  Cow.  200. 

90  Logan  v.  Steele,  7  T.  B.  Monr.  loi.     See  22  Wend.  121. 

91  Clark  V.  Gilbert,  38  Conn.  94. 


ADVERSE    POSSESSION.  83 

one  tenant  in  common,  joint  tenant  or  coparcener  shows 
that  he  means  to  hold  out  his  co-tenants  and  actually 
exclude  them,  it  is  an  ouster,  and  his  possession  becomes 
adverse. '■  Although  a  tenant  in  common  without  claim- 
ing adversely  to  his  co-tenant,  his  possession  may  after- 
wards become  adverse  by  claim  of  title    to    the    whole." 

One  who  holds  land  is  not  precluded  from  acquiring 
and  holding  other  lands  and  retaining  the  same  against 
one  who  enters  without  title."^ 

The  rule  that  one  who  enters  upon  real  estate  under  a 
conveyance  in  fee,  from  a  lessee  who  had  previously  en- 
tered as  tenant  of  the  lessor,  and  this  relation,  having  been 
once  established,  attaches  to  all  who  may  succeed  to  the 
possession  through  or  under  the  tenant  immediately  or 
remotely,  and  precludes  them  from  acquiring  a  title  hostile 
to  the  title  of  the  lessor,  and  from  originating  an  adverse 
possession,  applies  only  where  the  conventional  relation 
of  landlord  and  tenant  exists,  and  some  rent  or  return  is 
in  fact  reserved  ;  it  is  not  applicable  to  one  holding  under 
an  assessment  lease.  An  adverse  possession  may  be  orig- 
inated during  the  running  of  such  a  lease,  which  will  ripen 
into  a  title  twenty  years  after  the  end  of  the  term."'*  A 
mortgagor  or  his  grantee  may  repudiate  the  mortgage 
and    convert    his    holding    into    an    adverse    possession."^ 

In  an  action  by  a  purchaser  of  land  at  an  execution 
sale  seeking  to  make  a  third  party  who  had  previously 
purchased  the  land  of  the  execution  defendant   a   trustee 

^2  Brackett  v.  Norcross,  i  Me.  98.  See  24  Wend.  587  ;  2  Dev.  & 
B.  97. 

93  Millard  -v.  McMullan,  68  N.  Y.  345. 
^  Slaughter  v.  Fowler,  44  Cal.  195. 
5*5  Sands  v.  Hughes,  53  N.  Y.  287,  ante. 
^6  Jameson  v.  Perry,  38  Iowa,  14. 


84  THE     LAW    OF     PARTITION. 

thereof  against  his  will,  his  possession  must  be  treated  as 
adverse  to  that  of  his  vendor,  and  the  possession  is 
taken  under  the  purchase  sought  to  be  avoided."  ^ 

^  Bobb  T/.  Woodward,  50  Mo.  95. 

&  On  who  cannot  acquire  partition.     41  Md.    81;    34  Barb.  485; 

5  Cow.  123  ;  7  Cow.  323  ;  22  N.  Y.  44 ;  23  Wend.  531  ;  19  Barb.  644; 
70  N.  Y.  303  ;  4  Johns.  390 ;  29  Mo.  176  ;  31  Penn.  St.  94  ;  3  Caines, 
188;  I  Black,  150;  7  N.  Y.  523;  59  Id.  46  ;  20  Id.  400;  3  Hill,  513; 
16  Pet.  25  ;  2  Johns.  Ch.  30 ;  3  Sumn.  C.  Ct.  476  ;  5  Cow.  483  ;  68 
N.  Y.  345  ;  29  Wend.  451  ;  10  Ves.  Jr.  444;  32  How.  Pr.  439;  25 
Wend.  389 ;  1 1  Hare,  230  ;  i  H.  &  N.  225. 

Against  whom  acquired.  1 1  Ala.  156  ;  3  Greene,  171  ;  17  Ves.  87 ; 

2  Vern.  540 ;  10  Mod.  206 ;  29  Barb.  319  ;  2  Conn.  27  ;  3  Allen,  328 ; 
27  Ga.  159  ;  51  Me.  301  ;  24  Tex.  583;  2  Caines,  169;  10  Ohio.    362  ; 

3  Rich.  418;  92  U.  S.  343  ;  16  East,  283;  i  Abb.  App.  Dec.  27  ;  5 
Bush  Ky.  128. 

Possession  jnust  be  actual.  60  Mo.  271  ;  55  Ga.  44  ;  39  Cal.  543 ; 
50  Ind.  35  ;  2  Duv.  14 ;  41  Cal.  571  ;  43  Vt.  462  ;  46  Ala.  335  ;  38  Tex. 
591  ;  60  Mo.  559. 

Must  be  continuous.  17  U.  S.  601  ;  31  Me.  583  ;  30  Ark.  640  ;  66 
Mo.  365. 

t  In  Ohio,  knowingly  selling  and  conveying  land  with- 
out having  any  legal  or  equitable  title,  founded  on  a  writ- 
ten contract,  devise,  descent  or  deed,  with  intent  to  defraud 
the  purchaser,  is  a  fraud,  and  the  party  doing  it  is  liable  to 
imprisonment  in  the  penitentiary  at  hard  labor.  Statutes  of 
Ohio,  1 831,  p.  142. 

c  In  Connecticut,  by  the  colony  act  of  1727,  the  seller  forfeits 
half  the  value  of  the  land  ;  and  by  the  Revised  Statutes  of  1821, 
the  forfeiture  is  continued,  and  applies  as  well  to  the  buyer  as  to 
the  seller.  In  Kentucky^  by  the  champerty  act  of  1824,  every 
conveyance  or  contract  for  the  sale  of  land  held  adversely,  is  void, 
and  the  pre-existing  title  of  the  vendor  is  not  impaired.  Wash 
V.  McBrayer,  i  Dana,  566;  Redman  v.  Sanders,  2  Id,  68.  In  Mas- 
sachusetts, the  penalty  in  the  statute  of  32  Hen.  VIII.  has  never 
been  adopted,  though  the  principle  of  the  common  law  is 
assumed,  that  such  a  conveyance  is  void.  5  Pick.  348.  In  Indiana, 
such  a  conveyance  is  held  void  at  common  law.  Fite  v.  Doe,  i 
Blackf.  127. 

Haddrick   v.  Wilmarth,  5    N.  H.  181  ;   Whittemore  ^'.  Bean, 

6  Id.  50  ;  Stoever  v.  Whitman,  6  Binney,  420  ;  Cressen  v.  Miller,  2 
Watts,  272  ;  Aldridge  v.  Kincaid,  2  Littell,  393.    Act  of  Tennessee, 


ADVERSE    POSSESSION.  85 

Adverse  Possession  Tenants  in  Common       The 
possession    of  one   tenant  in  common  is  generally  con- 

1805,  c.  II.  It  was  held  in  Kentucky,  in  McConnell  t/.  Brown,  5 
Mon,  478  ;  S.  C,  4  J.  J.  Marsh.  112,  that  the  lands  of  a  defendant 
were  not  liable  to  execution,  under  the  act  of  1798,  whilst  in  the 
adverse  possession  of  another.  Then  came  the  act  of  1828,  and 
afterwards  the  case  of  Frizzle  v.  Veach,  i  Dana,  211,  in  which  it 
was  held,  that,  under  the  last  act,  the  lands  of  the  defendant, 
though  in  the  adverse  possession  of  another,  were  subject  to  levy 
and  sale  on  execution,  and  that  the  champerty  doctrine,  and 
champerty  act  of  1824,  did  not  apply.  The  statute  against  buying 
and  selling  pretended  titles  does  not  prohibit  the  sale  and  pur- 
chase of  equitable  titles.  It  means  legal  and  not  equitable  titles. 
Lord  Eldon,  in  Wood  v.  Griffiith,  i  Swanst.  55,  56;  Allen  -o. 
Smith,  I  Leigh,  231. 

e  M.  8  Edw.  IV.  13,  6;  50  Ass.  pi.  2  ;  Fitz.  tit.  "Champerty," 
pi.  15  ;  Mowse  r.  Weaver,  Moore,  655  ;  Hawk.  P.  C.  b.  i,  c.  84.  tit. 
"Champerty  ;"  2  Co.  Inst.  563,  564;  Jackson  v.  Ketchum,  8  Johns. 
479.  Mr.  Dane  says,  there  is  no  statute  on  the  subject  in  Massa- 
chusetts, but  that  champerty  is  an  offense  in  that  State  at  common 
law.  6  Dane  Abr.  741.  §  41.  Purchasing  an  interest  in  the 
thing  in  dispute,  with  the  object  of  maintaining  and  taking  part 
in  the  litigation,  is  still  champerty  and  an  offense.  Tindal,  Ch. 
J.,  in  Stanley  v.  Jones,  7  Bingh.  369.  Persons  having  any  legal  or 
equitable  interest  in  the  matter  in  dispute,  or  standing  in  the 
relationship  of  father  and  son,  ancestor  and  heir  apparent,  hus- 
band and  wife,  and  brothers,  are  exceptions  to  the  law  of  mainte- 
nance, and  may  maintain  each  other's  suits.  So,  persons  having 
a  common  interest  in  the  same  thing  by  the  same  title,  may  unite 
for  their  common  defense  of  it.  The  ancient  English  statutes 
under  Edward  I.  reached  attorneys  as  well  as  others.  They 
reached  equally  officers  and  individuals — nulle  ministre  le  rot  ne 
nul  autre,  were  permitted  to  take  upon  him  any  business  in  suit 
in  any  court,  for  to  have  part  of  the  thing  in  plei  or  demand. 
Every  agreement  relating  thereto  was  declared  void.  Lord  Lough- 
borough considered  the  offense  of  maintenance  as  malum  in  se, 
and  all  agreements  tainted  with  it,  even  as  between  attorney  and 
client,  are  void  in  equity  as  well  as  at  common  law.  Kenney  v. 
Browne,  3  Ridgw.  P.  C.  462  ;  Wallis  v.  Duke  of  Portland,  3  Ves. 
494;  Powell  7/.  Knowler,  2  Atk.  224;  Stevens  v.  Bagwell,  15  Ves. 
139;  Wood  7^.  Downes,  18  Id.  129;  Arden  v.  Patterson,  5  Johns. 
Ch.   48,  49.     The   courts   of  equity,   upon   general   principles  of 


86  THE    LAW    OF    PARTITION. 

sidered  the  possession  of  all  the  tenants  in  common, 
and  this  presumption  will  prevail  in  favor  of  all  until  some 
notorious  act  of  ouster  or  adverse  possession  is  brought 
to  the  knowledge  of  the  others  ;  when  this  occurs  the  pos- 
session is  from  that  time  adverse  to  the  other  co-tenants, 
and  will  afterwards  operate  against  them.®*  It  is  a  ques- 
tion of  fact  whether  a  tenant  in  common   entered  upon 

policy,  will  not  permit  an  attorney  to  accept  anything  from  his 
client,  pending  the  suit,  except  his  demand.  There  would  be  no 
bounds,  said  Lord  Thurlow  (Welles  ■y.  Middleton,  i  Cox,  125)  to 
the  crushing  influeuce  of  his  power,  if  it  was  not  so.  But  it  is 
not  maintenance  for  a  person  to  assign  his  interest  in  a  debt, 
pending  a  suit  for  its  recovery  ;  but  if  it  be  purchased  to  answer 
a  private  end,  it  is  maintenance  :  as  where  a  party  agrees  to  give 
a  stranger  the  benefit  of  a  suit,  on  condition  that  he  prosecute  it. 
2  Roll.  Abr.  113;  Harrington  v.  Long,  2  Mylne  &  Keene,  590. 

e  New  York  Revised  Statutes.  The  words  of  the  New  York 
Revised  Statutes  are,  that  "  no  estate  or  interest  in  lands,  other 
than  leases  for  a  term  not  exceeding  one  year,  nor  any  trust  or 
power,  over  or  concerning  lands,  or  in  any  manner  relating 
thereto,  shall  hereafter  be  created,  granted,  assigned,  surrendered, 
or  declared,  unless  by  act  or  operation  of  law,  or  by  a  deed  or  con- 
veyance in  writing,  subscribed  by  the  party  creating,  granting, 
assigning,  surrendering,  or  declaring  the  same,  or  by  his  lawful 
assent,  thereunto  authorized  by  writing."  So  again,  "  every  con- 
tract for  the  sale  of  any  lands,  or  any  interest  in  lands,  shall  be 
void,  unless  the  contract,  or  some  note  or  memorandum  thereof 
expressing  the  consideration,  be  in  writing,  and  subscribed  by 
whom  the  sale  is  to  be  made,  or  by  his  agent  lawfully  athorized." 

Frear  v.  Hardenbergh,  5  Johns.  272 ;  Lower  v.  Winters,  7 
Cow.  263. 

^  Anon.,  I  Ld.  Raym.  182  ;  Parker??.  Stansland,  11  East,  362; 
Evans  v.  Roberts,  5  Barnw.  &  C.  289.  The  English  cases  go  to 
very  refined  distinctions  on  this  subject.  Thus,  the  sale  of  a  crop 
of  growing  grass,  or  of  hops,  or  of  turnips,  is  within  the  statute, 
because  they  were  in  a  growing  state,  requiring  further  nourish- 
ment ;  but  the  potatoes  in  the  case  in  Barnw.  &  C.  had 
arrived  at  maturity,  and  only  remained  to  be  gathered.  Crosby  -v. 
Wadsworth,  6  East,  602  ;  Waddington  v.  Bristow,  2  Bos.  &  P.  452; 
Emmerson  v.  Heelis,  2  Taunt.  38. 

98  Clymer  v.  Dawkins,  3  How.  U.  S.  674.     See  16  Pet.  455. 


ADVERSE    POSSESSION.  87 

the  estate  claiming  an  exclusive  right  and  ousted  his  co- 
tenant  or  not.*'  An  entry  upon  and  a  possession  of  the 
whole  of  the  land  by  one  tenant  in  common,  as  if  it  had 
been  his  exclusive  individual  property,  and  the  receipt  by 
him  of  the  rents  and  profits  thereof,  without  accounting 
to  his  co-tenants  for  any  part  thereof,  or  proof  of  a  de- 
mand to  do  so,  amounts  to  an  actual  ouster.""  An  ouster 
will  be  presumed  between  tenants  in  common  when  one  in 
possession  refuses  to  pay  rent  when  demanded  by  his  co- 
tenant,  and  claims  the  whole  of  the  land  and  has  peace- 
able possession  of  the  same."^  A  co-tenant  may  be 
ousted  by  denying  or  resisting  his  title."' 

The  peaceable  possession  of  one  tenant  in  common, 
accompanied  with  no  act  which  can  amount  to  an  ouster, 
will  not  be  construed  as  adverse  possession."^  But  where, 
by  some  notorious  act,  he  claims  an  exclusive  right, 
though  it  be  under  a  title  which  is  void,  his  possession  is 
adverse  and  the  statute  of  limitations  will  run."*  And  an 
adverse  possession  against  two  tenants  in  common,  one  of 
whom  is  within  the  saving  of  the  statute  of  limitations, 
operates  against  the  other. "^  It  has  been  held  that  actual 
possession  of  land,  under  a  deed  which  purports  to  con- 
vey the  whole  thereof,  and  under  an  assumption  or  belief 
that  it  does  convey  the  whole,  when  in  fact  it  gives  title 
to  an  undivided  part  only,  is  not  an  ouster  of  the  tenants 
in  common  who  hold  the  remaining  interest  in  the  land."* 

^9  Cummings  v.  Wyman,  10  Mass.  464.     See  30  Conn.  492. 
100  Bigelow  V.  Jones,  10  Pick.  161. 
1"!  Johnson  v.  Taulman,  18  Ala.  50. 
1"^  Thomas  v.  Pickering,  13  Me.  337. 
^^^  Challefoux  v.  Ducharme,  4  Wis.  554. 

1"'*  Jackson  v.  Tibetts,  9  Conn.  241.  See  43  N.  Y.  152;  9 
Ired.  N.  C.  214  ;  38  Mo.  561. 

iCy  Doolittle  v.  Blakseley,  4  Day,  265. 
106  Seaton  v.  Son,  32  Cal.  481. 


88      ^^  THE    LAW    OF    PARTITION. 

The  mortgage  of  the  whole  estate  by  one  tenant  in 
common  is  not  conclusive  evidence  of  an  ouster."'  An 
acknowledgment  by  the  widow  and  one  of  the  co-tenants 
in  possession,  that  the  party  claiming  was  the  owner  of 
the  premises,  and  that  they  held  under  him,  is  not  suffi- 
cient to  establish  an  ouster  by  such  a  party  of  his  co- 
tenants."* 


107 
108 


Hodgman  v.  Shannan,  44  N.  H.  572. 
Forward  v.  Deetz,  32  Penn.  St.  69. 


CHAPTER   VII. 


PARTIES. 


It  is  a  general  rule  that  all  persons,  who  may  in  any 
way  be  interested  in  the  lands  sought  to  be  partitioned, 
shall  be  made  parties  to  the  action.  This  would  include 
all  tenants  in  common,  joint  tenants  and  co-parceners 
who  may  be  the  owners  in  fee  of  the  premises  ;  and  it, 
also,  includes  those  who  may  be  in  possession  although 
not  interested  in  the  premises  as  tenants  or  otherwise, 
that  is,  tenants  under  a  lease,  or  a  person  who  may  be 
growing  a  crop,  or  one  who  has  a  right  to  use  buildings, 
or  to  take  wood  from  the  lands,  or  the  right  to  cultivate 
a  portion  of  the  lands  for  some  particular  or  ordinary 
purpose.  It,  also,  includes  those  who  have  a  lien  upon 
the  land,  or  who  may  be  interested  in  any  mortgage, 
judgment,  or  mechanics'  lien,  or,  in  fact,  any  lien  that 
may  be  actual  valid  against  the  premises. 

It  is  true  that,  like  most  rules  of  law,  there  are  excep- 
tions to  this  rule.  If  the  action  of  partition  is  between 
tenants  in  common,  as  remaindermen  or  reversioners,  as 
the  action  between  remainder  and  reversioners  for  par- 
tition is  wholly  and  purely  between  them  as  co-tenants, 
and  the  person  or  persons  who  may  own  the  estate  that 
is  to  be  carved  out,  before  the  enjoyment  of  the  remain- 
dermen or  reversioners  of  their  estate,  need  not  be   made 

[89] 


go  THE    LAW    OF    PARTITION. 

parties  to  the  action,  as  the  action  of  partition,  between 
remaindermen  and  reversioners  as  co-tenants,  can  in  no 
way  interfere  with  those  who  own  and  possess  a  present 
estate  and  they  need  not  be  made  parties  to  the  action 
of  partition,  as  they  are  in  no  way  affected  thereby. 

A  tenant  in  common  of  a  vested  remainder  of  real  estate, 
though  his  right  to  possession   is    postponed    during  the 
continuance  of  a  Hfe  estate,  may  institute  proceedings  for 
the   partition  of  land,  whether  the  intervening  estate   is 
held  as  an  entirety,  or  by  several  as  joint  tenants,  or  tenants 
in  common.'     The  plaintiff's  testator  in  his  life,    a    tenant 
in  common  with  the  defendant,  T.  S.,    devised    his    share 
of  the  real  property  held  in  common  to  his  widow,  for  life, 
with  the  remainder  to  plaintiff  in  fee  ;  held,  that  the  plaint- 
iff could  bring  action  for  partition,  during  the  life  of  the 
widow.     A  remainderman  may  have  constructive  posses- 
sion, which  will  be  sufficient  to   constitute    unity    of  the 
right  of  possession,    required    to    exist    in    a  tenancy   in 
common."-     In  one  case  of  Blakeley   against    Calder,    the 
court  held  that  a  remainderman,  though  not    actually   in 
possession  of  the  premises,  might  maintain  an    action    for 
partition.     This  case  was  taken  to  the    Court  of  Appeals, 
and  the  learned  judge  there.  Judge  Bowen,    delivered   an 
opinion  affirming  the  judgment  of  the  court  Below,  to  the 
affect  that  the  purchaser,  at  partition  sale  of  the  premises, 
may  be  compelled  to  complete    the    purchase,    upon    the 
ground   that  the  remainderman  had  a    right    to    partition 
the  property.     Judge  Denio,  in  the  same  case,  also,  wrote 
an  opinion  in  favor  of  the  affirmation,    upon    the  ground, 

1  Blakeley  v.  Calder,  15  N.  Y.  617  ;  citing  8  Cow.  361  ;  19  Wend. 
397  ;  9  Cow.  530  ;  5  Den.  385  ;  11  How.  489  ;  2  Den.  9  ;  2  Com.  9 
D.  2  Bar.   C.  H.  R.  398. 

2  Sullivan  v.  Sullivan,  4  Hun,  198. 


PARTIES. 


91 


that  the  owner  of  a  vested  remainder,  though  not  in  actual 
possession,  could  maintain  an  action  for  partition,  which 
opinion  was  concurred  in  by  three  other  judges.  Justice 
Potter,  in  discussing  this  question,  in  the  case  of  Sullivan 
V.  SulHvan,  above  referred  to  says  :  "  Possession  of  the 
premises,  so  as  to  allow  the  bringing  of  an  action  of  par- 
tition, is  presumed  from  the  allegation  in  the  complaint, 
that  the  parties  are  seized  as  tenants  in  common.  The 
seizin  of  one  tenant  in  common  who  admits  or  does  not 
deny  the  title  of  his  co-tenant,  may  be  considered  as 
seizin  of  all  the  tenants.  Where  there  is  no  visible  adverse 
possession,  the  entry  of  one  co-tenant  is  deemed  a  posses- 
sion and  seizin  of  all  according  to  the  titles.  Possession  of 
one  tenant  in  common  is  possession  of  all.  Hence,  I 
conclude,  that  constructive  possession  is  sufficient  to  con- 
stitute unity  of  the  right  of  the  possession,  required  in  a 
tenancy  in  common.  It  is,  also,  urged  that  the  power  in 
a  remainderman,  having  no  right  of  actual  possession, 
until  a  remote  future,  to  compel  a  partition  or  sale  of  the 
lands  in  the  actual  occupation  of  other  owners  who 
preferred,  and  whose  interest  it  is  to  continue  that  occu- 
pation, during  the  period,  that  they  are  entitled  to  the 
actual  occupation,  may  be  inopportunely  or  oppressively 
exercised." 

The  provisions  of  a  will  by  which  real  property  is  given 
to  "  heirs  of  the  body  of  A,  whom  she  shall  leave  her  sur- 
viving," gives  to  the  devisees  during  the  lifetime  of  A,  a 
vested  remainder  in  fee,  liable  to  open  and  and  let  in  after- 
born  children,  and  liable  also  to  be  divided  by  the  death 
of  any  devisee  before  the  decease  of  A,  and  one  who  is 
entitled  to  such  vested  remainder  in  lands,  is  in  posses- 
sion of  his  undivided  share,  within  such  meaning  of  the 
statute  relating  to  actions  for  partitions  of  lands,  although 


92  THE    LAW    OF    PARTITION. 

there  is  a  life  estate  covering  the  lands,  and  the  life  ten- 
ant is  in  possession.  Future  contingent  interest  of  per- 
sons in  esse  may  be  debarred  by  the  sale  in  judgment 
under  partition/  Although  remaindermen  and  reversion- 
ers may  be  made  parties  defendant  in  an  action  for  parti- 
tion, they  cannot  institute  the  action,  at  least  as  against 
others  not  seized  in  a  like  estate  with  them.  The  right  is 
only  given  to  one  having  actual  or  constructive  posses- 
sion of  the  land  sought  to  be  partitioned.  A  remainder- 
man has  neither,  but  simply  an  estate  to  vest  in  possession 
infiitiiro.  A  writ  of  partition  will  not  lie  at  the  instance  of 
a  remainderman  seized  of  an  estate  subject  to  the  term 
of  the  life  of  a  tenant  in  possession.  If  the  action  for 
partition  will  lie  at  the  suit  of  one  in  remainder,  it  must 
be  by  virtue  of  the  statutes  regulating  the  proceedings 
for  partition.  Prior  to  the  Revised  Statutes  it  was  well 
understood  that  to  entitle  one  to  institute  proceedings  for 
a  partition  of  lands  he  must  be  in  the  actual  or  construct- 
ive possession  of  the  lands  sojight  to  be  partitioned.* 
Where  the  lessee  becomes  the  purchaser  of  the  undivided 
moiety  of  the  rent  and  reversion,  the  lease  and  rent  is 
merged  and  extinguished  to  that  portion  of  the  premi- 
ses ;  and  he  is  not  such  a  tenant  in  common  of  the  rent 
and  reversion,  with  the  owner  of  the  other  half  thereof, 
as  to  entitle  the  latter  to  a  partition  of  the  land  during 
the  continuance  of  the  lease.  If  the  owner  of  the  undi- 
vided moiety  of  a  lot  of  land  is  a  lessee  of  the  other  half 
thereof,  and  the  lease  has  become  forfeited  by  the  non- 
performance of  a  condition  subsequent,  the  landlord  must 
enter  for  the  forfeiture,  or  otherwise  must  obtain  posses- 

3  Chism  V.  Keith,  i  Hun,  589. 

*  Sullivan  v.  Sullivan,  66  N.  Y.  37.    See  56  Id.  226  ;  12  Id.  519; 
II  Vt.  129. 


PARTIES.  93 

sion  of  his  undivided  half  of  the  premises,  before  he  can 
sustain  a  bill  of  partition."  A  party  who  has  a  mere  future 
contingent  interest  in  an  undivided  share  of  real  estate 
cannot  maintain  suit  for  a  partition.  A  mere  reversioner, 
without  the  concurrence  of  any  of  the  owners  of  the 
present  interest  in  the  premises,  has  no  right  to  file  a  bill 
for  partition.  But  a  reversioner  is  a  necessary  party,  where 
the  bill  is  filed  by  a  person  who  is  the  owner  of  an  undi- 
vided share  of  the  present  interest  in  the  property.  The 
reversioner  is  also  a  necessary  party,  where  the  suit  is 
brought  by  the  owner  of  an  undivided  share  of  the  premi- 
ses for  life,  or  any  other  particular  estate  in  the  same, 
and  some  of  the  other  parties  owning  the  residue  of 
the  premises  in  fee.*'  Where  there  is  a  future  devise 
to  children  or  issue,  with  a  substituted  devise  in  case 
they  die  during  the  precedent  estate,  the  devise  vests  as 
soon  as  a  child  is  born,  subject,  however,  to  let  in  after- 
born  children,  and  to  be  divested  as  to  any  of  such  issue 
who  may  die  during  the  continuance  of  the  precedent 
estate.'  Where  six  children,  one  of  whom  was  an  idiot, 
inherited  a  lot  of  land  as  tenants  in  common,  and,  for  the 
purpose  of  making  partition  thereof,  it  was  agreed  that  A, 
one  of  the  children,  should  purchase  the  share  of  two 
others,  and  have  the  east  half  of  the  lot  for  his  portion 
thereof,  and  that  E,  another  of  the  children,  should  pur- 
chase the  share  of  one  of  the  others,  and  should  also  take 
the  share  of  the  idiot  in  consideration  of  supporting  such 
idiot  during  his  natural  life,  and  that  he  should  have  the 
west  part  of  the  lot  for  his  portion  thereof,  and  the  con- 
veyances were   executed  by  all  the  children,  except  the 

!»  Lansing  v.  Pine,  4  Paige,  639, 

^  Striker  v.  Mott,  2  Paige,  387.     See  i  Sandf.  Ch.  202. 

7  Smith  V.  Scholtz,  68  N.  Y.  41. 


94  THE    LAW    OF    PARTITION. 

idiot,  conveying  the  premises,  in  accordance  with  the 
above  understanding  or  agreement  ;  and  afterwards,  A 
sold  the  east  half  of  the  lot  to  T--Hcld,  that  as  E  ob- 
tained no  title  to  the  idiot's  share  of  the  lot,  there  was  no 
consideration  for  his  agreement  to  support  the  idiot ;  but 
that  T  was  entitled  to  an  equitable  partition  of  the  premi- 
ses, to  which  the  share  of  the  idiot  shall  be  assigned  to 
her  out  of  the  west  half  of  the  lot  which  was  conveyed 
to  E  by  the  other  heirs.  Where  a  bill  is  filed  by  a  credi- 
tor of  a  lunatic  against  his  committee  to  obtain  payment 
of  a  debt  out  of  the  estate,  it  is  not  necessary  to  make  the 
lunatic  a  party.  But  in  a  suit  where  there  are  conflicting 
interests  between  a  lunatic  and  his  committee  which  must 
be  settled  in  the  case,  both  may  be  made  parties.'  It 
has  been  decided  that  partition  suits  are  embraced  within 
the  general  provisions  of  the  Revised  Statutes  relative  to 
the  revival  of  suits  ;  but  if  a  suit  for  partition  is  revived 
against  the  infant  heir,  a  guardian  ad  litem  of  the  infant 
must  give  the  same  security  which  would  have  been  re- 
quired if  the  infant  had  been  one  of  the  original  parties 
to  the  suit.  If  the  husband  dies  pending  a  partition  suit 
to  which  his  wife  is  not  made  a  party,  the  suit  can  only 
be  revived  or  continued  against  the  widow,  as  to  her  right 
of  dower  in  the  premises,  by  the  original  bill  in  the  nature 
of  a  bill  of  revivor  and  supplement.  The  purchaser  of 
premises  sold  under  a  decree  for  partition  always  takes 
the  same  subject  to  the  right  of  dower  of  the  tenants  in 
common,  or  co-tenants,  unless  the  wife  was  a  party  to  the 
suit  ;  but  where  an  actual  partition  is  made,  the  wife's 
dower  will  attach  upon  the  portion  of  the  premises  allotted 
to  her  husband.'     It  is  a  well  settled  principle  of  law,  that 

8  Teal  V.  Woodworth,  3  Paige,  470. 

9  Wilkinson  v.  Parish,  3  Paige,  653. 


PARTIES. 


95 


partition  between  tenants  in  common  of  real  property  is  a 
matter  of  right,  by  the  common  law,  as  well  as  by  the 
statute,  where  both  parties  cannot,  or  either  of  them  will 
not,  consent  to  hold  and  use  such  property  in  common.'" 
The  party  applying  for  a  partition  of  lands  must  not  only 
have  a  present  interest  in  the  premises  of  which  partition 
is  sought,  as  a  joint  tenant  or  a  tenant  in  common,  but  he 
must  also  be  actually  or  constructively  in  the  possession 
of  his  undivided  share  or  interest  in  such  premises."  In 
the  State  of  New  York,  it  was  the  intention  of  the  revi- 
sers to  exclude  a  party  from  instituting  a  partition  suit, 
for  the  partition  of  premises  held  adversely  to  him,  until 
after  he  had  obtained  possession  of  his  share  of  the  premi- 
ses, or  some  part  thereof,  by  ejectment  or  otherwise.  In 
South  Carolina  an  interest  may  be  severed,  and  the  share 
of  each  ascertained  and  set  forth,  where  the  subject  mat- 
ter is  not  susceptible  of  division.  Whether  this  be  just  or 
practicable,  is  a  matter  for  the  commissioners  to  decide  so 
as  to  enable  the  court  to  make  a  proper  decree.  The 
equitable  rights  of  the  parties  should  appear  from  the 
pleadings. ^^  The  wife  of  a  husband  tenant  in  common  is 
not  a  necessary  party  to  a  suit  for  partition.  Such  a  suit 
cannot  take  away  her  right  of  dower.  On  a  partition  suit 
such  right  attaches  to  the  husband's  separate  share  ;  and, 
if  a  sale  is  decreed,  the  lands  should  be  sold  subject  to  it : 
unless  she  will  voluntarily  release.  The  partition  deed 
will  not  convey  her  right  of  dower.  Neither  will  any  act 
of  the  husband,  without  the   consent  of  the  wife,  or  any 


^•^  Smith  V.  Smith,  lo  Paige,  470.  See  i  Ves.  «&  B.  554  ;  3  Fairf. 
146  ;  Alnat  on  Part.  4,  78,  87  ;  8  Ves.  143. 

11  Burhans  v.  Burhans,  2  Barb.  Ch.  398. 

1-  Thayer  v.  Lane,  Walker  Ch.  200.  See  3  Terms  Am.  Ch.  Dig. 
tit.  "  Partition." 


96  THE    LAW    OF    PARTITION. 

misconduct  on  the  part  of  the  wife,  bar  her  right  of  dower. 
A  decree  for  partition  or  sale  or  real  estate  will  not  be 
granted  among  heirs  while  the  personal  property  appears 
to  be  insufficient  to  pay  the  debts  of  the  ancestor." 

An  assignee  of  a  deficiency  judgment  against  the 
executors  of  the  testator  on  a  foreclosure  of  a  mortgage 
upon  real  estate,  of  which  the  testator  died  seized,  is  not 
entitled  to  intervene  and  serve  an  answer  in  a  partition 
suit,  in  which  suit  the  mortgagee  was  originally  a  party 
and  appeared,  but  served  no  answer."  It  is  irregular  for 
a  bill  to  be  filed  by  a  person  of  unsound  mind  not  so  found 
by  inquisition,  by  the  next  friend,  for  the  purpose  of  deal- 
ing with  the  real  estate  of  the  person  of  unsound   mind." 

A  court  of  equity  will  not  compel  a  purchaser  to  take 
a  doubtful  title  as  on  a  bill  for  specific  performance,  or  a 
sale  on  foreclosure  of  a  mortgage.  But  this  rule  does  not 
always  apply  to  a  sale  decreed  upon  a  bill  for    partition.'® 

Some  courts  have  held,  and  especially  in  the  last  case 
cited,  that  it  is  not  necessary  to  make  judgment  creditors 
and  others,  having  incumbrances  upon  the  premises, 
parties  to  a  bill  for  partition,  even  where  a  sale  of  the 
premises  is  decreed,  and  where  they  were  made  parties 
in  such  a  case  by  a  supplementary  bill  it  was  held  that  the 
bill  should  be  dissmissed,  as  in  the  case  of  Swan  v.  Swan, 
8  Price,  518,  The  action  was  a  bill  for  partition  of  pre- 
mises mortgaged  by  a  common  owner  to  a  third  person. 
At  a  hearing,  it  was  argued   for    the  defendant    that    the 

13  Matthews  v.  Matthews,  i  Edw.  564.  See  7  Paige,  391  ;  4  Id, 
47  ;  7  Paige,  411;  22  Wend.  501  ;  23  Hun,  1 19 ;  citing  3  Paige,  653. 

1*  Patterson  v.  McCunn,  N.  Y.  Weekly  Dig.  186;  citing  63  N. 
Y.  438. 

15  Halfhide  v.  Robinson,  8  Moak  Eng.  918.  See  25  &  26  Vict.  c. 
86,  §§  I,  2,  13. 

IS  Sebring  v.  Mersereau,  9  Cow.  344. 


PARTIES.  97 

mortgagee  should  have  been  before  the  court,  as  he  was  a 
party  in  interest.  But  it  was  decided  that  the  court  could 
not  make  the  mortgagee  agree  to  a  partition,  because  he 
is  entitled  to  the  whole.  This  decision  undoubtedly  was 
correct.  But  it  is  hard  for  one  to  see,  under  the  present 
practice,  why  the  mortgagee,  or,  in  fact,  any  person  hav- 
ing incumbrances  upon  premises,  should  not  be  made 
party  defendant  to  the  action.  It  is  true  that  the  mort- 
gage liens,  and,  perhaps,  the  judgment  liens  rest  upon  the 
whole  property  sought  to  be  partitioned.  But  the  pur- 
chaser, upon  the  sale,  should  know  the  standing  of  those 
holding  such  liens,  and  should  know  the  exact  position 
and  circumstances  governing  and  controlling  the  premises 
bid  in  by  him.  Then,  if  those  incumbrancers  are  not' 
made  parties  to  the  action,  they  might  proceed  to  enforce 
their  liens.  In  that  case,  it  would  multiply  expense  and 
costs,  and  create  many  difficulties  not  necessary  in  such 
proceedings.  And  it  is  assumed  to  be  the  late  practice- 
that  all  persons,  having  an  interest  or  lien  in  or  upon  the 
property  of  any  kind,  shall  be  brought  into  court,  so  that 
the  court  may  adjudicate  their  claims.  It  is  not  to  be 
assumed  that  the  court  can  compel  the  mortgagee  to 
receive  the  money  secured  to  him  by  his  mortgage, 
before  the  same  becomes  due  ;  neither  is  it  to  be  assumed 
that  the  court  can  compel  such  an  owner  of  a  lien  to  allow 
his  lien  to  rest  upon  any  part  or  portion  of  the  property, 
or  to  take  any  satisfaction  of  his  lien  in  part  of  the  prop- 
erty. But  he  has  rights  in  the  premises,  which  the  court 
has  power  to  examine,  which  all  parties  to  the  case 
have  a  right  to  understand,  especially  the  purchaser. 
And  for  these  resons,  we  believe  that  the  latter  practice 
of  Vjringing  all  persons  who  have  an  interest  before  the 
court  is  the  proper  and  better  way  in  such  cases. 
7 


98  THE    LAW    OF    PARTITION. 

A  tenancy  by  the  courtesy  initiate  is  a  sufficient  estate 
in  lands  upon  which  to  base  a  partition  suit."  Where  the 
intestate  is  seized  and  possessed  of  lands  which  descend 
to  tenants  in  common,  one  of  them,  though  not  in  posses- 
sion, can  sustain  proceedings  under  the  statute  for  parti- 
tion, the  lands  being  unoccupied.  Children  of  half  blood 
take  equally  with  those  of  whole  blood,  and  have  equal 
rights  with  them  as  co-tenants."  The  statute  of  descents 
of  Rhode  Island  of  1822  enacts  "That  when  any  person 
having  title  to  any  real  estate  of  inheritance  shall  die  in- 
testate as  to  such  estate,  it  shall  descend  and  pass  in  equal 
portions  to  his  or  her  kindred  in  the  following  terms."  It 
then  provides  :  "  If  there  be  no  father,  then  to  the  mother, 
brother  and  sister  of  such  intestate,  and  their  descend- 
ants, or  to  such  of  them  as  there  be  ;"  and  then  declares, 
in  the  nature  of  a  proviso,  that,  "  when  the  title  to  any 
estate  of  inheritance  as  to  which  the  person  having  such 
title  shall  die  intestate,  came  by  descent,  gift  or  devise 
from  the  parent  or  other  kindred  of  the  intestate,  and  such 
intestate  died  without  children,  such  estate  shall  go  to 
the  kin  next  to  the  intestate  of  the  blood  of  the  person 
from  whom  such  estate  came  or  descended,  if  any  there 
be."  This  phrase  "of  the  blood,"  in  the  statute  includes 
the  half  blood.  This  is  the  natural  meaning  of  the  word 
"  blood,"  standing  alone  and  unexplained  by  any  context. 
The  half  brother  or  sister  is  of  the  blood  of  the  intestate  ; 
for  each  of  them  has  some  of  the  blood  of  the  common 
parent  in  his  or  her  veins." 

17  Riker  v.  Darke,  4  Edw.  Ch.  696. 

18  Beebe  v.  Griffing,  14  N.  Y.  235  ;  citing  2  Blacks.  Com.  227  ; 
2  Binney,  279. 

19  Gardner  v.  Collins,  2  Pet.  56.     See  3  Mas.  398. 


PARTIES.  99 

A  CESTUIS  QUE  TRUSTENT.  Children  are  not  necessary- 
parties  when  the  trustee  is  joined.  In  this  case,  the  de- 
fendant's testator  died  August  29,  1869,  leaving  a  will, 
made  in  January  of  that  year,  which  contained,  among 
others,  the  following  provisions  : 

"  First.  I  give  and  bequeath  to  my  son,  A.  Hammond 
Hicks,  in  addition  to  any  sum  heretofore  given  him,  the 
equal  undivided  half  of  my  lands  in  Iowa,  also  my  watch, 
seal  and  rings  ;  and  I  do  further  give  and  bequeath  to  my 
said  son  the  sum  of  ^5,000,  payable  one  year  after  my  de- 
cease. Second.  I  give  and  bequeath  to  my  son,  John  F. 
Hicks,  the  remaining  equal  undivided  one-half  of  my  lands 
in  the  State  of  Iowa,  and  I  do  discharge  him  from  all  in- 
debtedness to  me  for  the  sum  heretofore  advanced  ;  and  I 
bequeath  to  my  son,  John  Frank  Hicks,  the  sum  of  $2,000, 
to  be  paid  to  him  by  my  executors  when  he  shall  arrive  at 
the  age  of  twenty-five  years,  with  interest  from  the  time 
of  my  decease,  making  the  shares  of  my  sons  equal  in  my 
judgment."  Then  followed  certain  specific  bequests,  two 
legacies  of  $1,000,  and  one  of  $2,000;  and  then  the  fol- 
lowing provisions :  "  Seventh.  I  give,  grant,  devise  and 
bequeath  all  the  rest,  residue  and  remainder  of  my  estate, 
both  real  and  personal,  not  herein  effectually  disposed  of, 
which  I  may  own  at  the  time  of  my  decease,  to  Charles 
Stebbins,  Jr.,  of  Cazcnovia,  in  trust  for  the  following  pur- 
poses, viz  :  1st.  To  apply  the  interest  thereof,  or  so  much 
thereof  as  may  be  necessary,  for  the  comfortable  support 
of  my  father  during  his  natural  life.  2d.  Upon  and  after 
the  death  of  my  said  father  out  of  the  proceeds  of  said 
residuary  estate  to  pay  to  the  Oneida  Conference  Semi- 
nary, located  at  Cazenovia,  the  sum  of  $15,000,  and  to 
pay  the  balance  of  said  residuary  estate,  with  any  unex- 
pended income  thereof,  if  any,  to  my  said  two  sons,  share 


lOO  THE    LAW    OF    PARTITION. 

and  share  alike  ;  and  I  authorize  and  empower  said  Steb- 
bins  to  sell  and  dispose  of  said  property  herein  devised 
and  bequeathed  to  him  in  trust  at  public  or  private  sale, 
and  upon  such  terms  and  conditions  as  he  may  think  best 
for  the  purpose  aforesaid."  He  then  appointed  said  Steb- 
bins  and  two  others  executors  of  his  will. 

In  this  action,  the  point  is  taken,  that  the  Oneida 
Conference  Seminary  and  the  father  of  Russell  F.  Hicks 
are  necessary  parties.  This  defense  was  not  raised  by 
the  answer.  But  the  court  said,  that  it  was  enough  that 
tne  trustee  was  made  a  party  ;  that  the  legal  title  was  in 
him,  and  he  represented  the  interest  of  the  cestui  que 
trusts.^"  The  New  York  Code  of  Civil  Procedure,  section 
1534,  makes  appropriate  provisions  for  the  bringing  and 
maintaining  of  an  action  for  partition  by  an  infant.  As  a 
general  rule,  courts  do  not  encourage  such  actions  upon 
the  part  of  infants.  It  has  been  decided  that  a  suit  for 
partition  of  lands  cannot  be  maintained  by  an  infant, 
either  separately  or  jointly  with  adult  co-tenants  in  com- 
mon. But  the  decision  was  made  upon  that  part  of  the 
Revised  Statutes  allowing  tenants  in  common,  or  "  any 
one  or  more  of  them  "  being  of  full  age,  "  to  apply  for  a 
partition  in  the  Court  of  Chancery.  This,  of  course,  was 
previous  to  the  enactment  of  the  present  Code  of  Civil 
Procedure  of  New  York." 

The  subject  of  infancy  in  partition  will  be  fully  treated 
in  the  next  chapter,  and  there,  all  questions,  as  far  as 
possible,  pertaining  to  the  rights  of  infant  co-ten- 
ants, and  the  practice  relative  to  them  in  such  cases,  will 
be   fully  discussed.     Where    lands   leased    for  a    term  of 

20  Scott  V.  Stebbins,  37  Hun,  335  ;  15  Week.  Dig.  97. 

21  Postley  V.  Kain,  4  Sandf.  542. 


PARTIES.  lOI 

years  are  owned  by  several  persons  as  tenants  in  com- 
mon, both  of  the  rents  and  of  the  reversion,  a  bill  of  par- 
tition may  be  sustained  ;  but  a  sale  of  the  lands,  under  a 
decree  for  the  partition,  must  be  made  subject  to  the 
rights  of  the  lessees,  who  by  the  sale,  will  become  tenants 
to  the  purchaser  of  the  rents  and  reversion." 

Where  real  estate  is  sold  by  a  master,  or  by  one  ap- 
pointed by  the  court  for  such  purpose,  under  a  decree  of 
foreclosure,  the  purchaser  is  only  entitled  to  such  a  title 
as  a  purchaser  of  the  premises  would  receive  at  a  private 
sale  and  would  be  bound  to  take  from  his  vendor.  It  is  no 
valid  objection  to  the  title,  under  a  decree  in  partition 
between  the  heirs  at  law  of  the  person  who  died  seized 
of  the  premises,  that  the  suit  for  the  partition 
thereof  was  commenced  within  the  four  years  allowed  by 
law  for  proving  and  recording  a  will  of  real  estate,  unless 
there  is  some  reasonable  grounds  for  supposing  that  the 
decedent  actually  made  a  will  which  has  changed  the 
course  of  the  descent.^  It  is  a  fatal  objection  to  the  title 
derived  under  a  decree  in  partition,  that  the  complainant 
was  2.  feme  covert,  and  that  her  husband  was  not  joined 
with  her  as  a  party  to  the  suit.  And  where  it  appeared, 
from  the  affidavits  on  the  part  of  the  purchaser,  to  be  a 
matter  of  doubt  whether  the  complainant  was  not  a  mar- 
ried woman,  a  marriage  in  fact  having  been  solemnized 
between  her  and  a  man  who  claimed  to  be  her  husband, 
the  chancellor  refused  to  compel  the  purchaser  to  take 
the  title,  until  the  complainant  should  have  established 
the  fact,  upon  a  reference,  that  the  alleged  marriage  was 
illegal  and  void." 

22  Woodworth  V.  Campbell,  5  Paige,  518. 

23  Spring  V.  Sandford,  7  Paige,  550. 


I02  THE    LAW    OF    PARTITION. 

In  a  petition  for  a  partition,  under  the  statute,  it  is  not 
necessary  to  set  forth  the  rights  and  titles  of  the  several 
tenants,  at  large,  nor  is  it  necessary  to  allege  the  seizin 
of  the  ancestor  or  the  person  from  whom  the  parties 
derive  title  ;  but  it  is  sufficient  to  state,  in  general  terms, 
that  each  tenant  was  seized  of  his  part  or  share,  in  fee,  or 
as  the  case  may  be,  whether  such  seizin  be  acquired  by 
inheritance  or  purchase.  A  tenant  in  common  of  the 
inheritance  may  maintain  partition,  notwithstanding  a 
particular  estate  is  outstanding.  And  where  a  partition 
was  made  among  several  heirs,  assigning  to  each  his 
portion  of  the  lands,  by  metes  and  bounds,  but  excepting 
from  each  portion  a  share  thereof,  as  the  dower  of  the 
widow  of  the  ancestor,  it  was  held  valid.  The  statute 
relative  to  partition  does  not  extend  to  a  tenant  in  dower; 
but  the  estate  may,  nevertheless,  be  divided  among  the 
other  tenants,  and  a  partition,  so  made,  is  good,  though 
the  dower  of  the  widow  is  excepted  and  left  out.^*  But 
when  the  husband  is  seized  as  joint  tenant,  or  tenant  in 
common  of  the  land,  the  widow,  as  her  right  of  dower 
extends  only  to  an  undivided  part,  is  a  proper  party  to  a 
partition  among  several  joint  owners.-^ 

An  action  for  the  partition  of  land  cannot  be 
maintained,  where  the  parties  own  separate  parcels  and 
are  not  in  possession  of  any  portion  of  the  land 
described  in  the  complaint,  as  joint  tenants,  or  tenants 
in  common.^^  Yet,  in  such  a  case,  if  the  complaint 
asks  not  principally  for  relief,  but  for  such  other  or 
further   relief  in    the  premises   as    the    court  may  deem 

2*  Bradshaw  v.  Callaghan,  8  Johns.  558. 

25  Coles  V.  Coles,  15  Johns.  319.  Also  see  12  Johns.  434  ;  5  Wend. 
341  ;  16  Id.  52  ;  6  N.  Y.  89  ;  38  Ind.  428. 

26  Boyd  V.  Dowie,  65  Barb.  237. 


PARTIES.  103 

best,  the  court  may  g-ant  relief  in  case  of  confusion  of 
boundaries,  provided  the  same  is  set  forth  in  the  plead- 
ings. But  one  can  readily  see  that  if  the  parties  to  the 
action  own  the  land  in  separate  parcels,  although  there 
may  be  a  confusion  of  the  boundaries  of  those  respective 
parcels,  those  owners  are  not  co-tenants,  as  each  has  the 
title  to  his  parcel  in  entirety  ;  and  not  being  a  co-tenant 
or  coparcener,  there  could  be  no  action  of  partition 
between  them. 

A  decree  for  partition  cannot  be  made,  unless  all  per- 
sons interested  in  the  premises  are  made  parties  to  the 
suit  ;  and  the  party  applying  for  a  partition  of  lands  must 
not  only  have  a  present  estate  in  the  premises  of  which 
partition  is  sought,  as  a  joint  tenant  or  tenant  in  common, 
but  he  must  also  be  actually  or  constructively  in  the  pos- 
session of  his  undivided  share  or  interest  in  such  premises. 
Because,  if  there  is  adverse  possession,  valid  and  succeed- 
ing, the  only  proper  course  for  the  court  to  pursue  is  to 
dismiss  the  bill  as  having  been  prematurely  filed.  Such 
dismissal  should  be  without  prejudice  to  the  complainant's 
right  to  institute  a  new  suit  for  the  same;  because,  as  soon 
as  he  shall  have  obtained  proper  possession  of  his  share 
or  interest  in  the  property,  rents  or  profits  of  the  premises 
sought  to  be  partitioned,  accruing  while  the  lands  have 
been  held  adversely  to  the  claim  of  the  complainant,  even 
if  such  rents  and  profits  have  been  received  by  one  who 
was  a  joint  owner  of  the  premises  with  the  complainant, 
are  not  recoverable  upon  a  bill  for  partition."  Whether 
a  tenant  in  common  in  several  parcels  of  real  estate,  in 
each  of  which  his  co-owners  are  different  persons,  can 
bring  them  all  in  as  defendants  in  a  single  suit,  and  there- 

27  Burhans  v.  Burhans,  2  Barb.  Ch,  398. 


I04  THE    LAW    OF    PARTITION. 

in  have  partition  decreed  as  to  all  the  property,  is  a 
question  of  practice  not  yet  fully  decided  by  the  courts.^* 
A  petition  for  partition  lies  only  for  a  person  who  has 
a.  seizin  in  fact  of  the  premises. ^^  When  the  wife  of  the 
plaintiff  seeking  partition  of  land  has  an  inchoate  right  of 
dower  therein,  she  must  be  joined  with  him  as  plaintiff.^" 
A  guardian  of  a  minor,  who  is  a  tenant  in  common  with 
adults,  may  seek  partition."^  When  a  suit  for  partition  is 
brought  by  the  committee  of  a  lunatic  or  of  an  habitual 
drunkard,  the  lunatic  or  drunkard  should  be  joined  as 
plaintiff.''  The  grantee  of  the  widow's  right  of  dower 
in  the  land  may  maintain  a  bill  for  partition.^'  The  heirs 
of  a  deceased  person,  in  case  they  have  parted  with  their 
interest,  can  not,  their  grantees  being  proper  parties  to  an 
action  for  the  partition  of  the  real  estate  of  the  deceased.'* 
The  executors  and  devisees  of  a  deceased  tenant  in  com- 
mon, not  seeking  partition  among  themselves,  may  unite 
in  a  bill  in  equity  to  have  their  shares  of  the  land  set-off 
from  that  of  the  co-tenant.'^  All  persons  not  plaintiffs,  who 
have  an  interest  in  the  real  estate  sought  to  be  devided, 
should  be  made  defendants."*  Persons,  claiming  to  own 
entire  interest  in  part  of  the  land  sought  to  be  divided, 
have  a  right  to  come  in  and  defend,  and,  if  they  establish 

28  Darken  2/.  Wallace,  N.  Y.  Daily  Reg.  Aug.  9,  1883. 

29  Banner  v.  Kennebeck  Purchase,  7  Mass.  475 ;  Edmunds  v. 
Ames  Iron  Co.,  24  Conn.  230.  See  13  Pick.  251  ;  19  Wend.  367  ; 
5  Den.  385  ;  36  N.  H.  326. 

30  Ripple  V.  Gilborn,  8  Hun,  456. 

31  Zirkee  v.  McCue,  26  Gratt.  517.  See  24  Mo.  252. 

32  Gorham  v.  Gorham,  3  Barb.  Ch.  24. 

33  Morgan  v.  Staley,  11  Ohio,  389. 

^  Van  Derwerker  y.  Van  Derwerker,  7  Barb.  221. 

35  Paige  V.  Webster,  8  Mich.  263. 

36  Caster  v.  Stark,  19  111.  328.  See  6  Wall.  280;  i  Edw.  Ch. 
113- 


PARTIES.  105 

their  title,  the  suit  for  partition  can  be  maintained.'' 
Persons  who  hold  incumbrances  upon  seperate  undivided 
shares  need  not  be  made  parties.'*  The  heirs  as  well  as 
the  executors  must  be  made  parties.''  In  Mississippi  an 
administrator  need  not  in  general  be  made  a  party/"  But 
the  administrator  of  a  deceased  tenant  in  common,  to 
whom  rents  were  due  from  his  co-tenant  at  the  time  of 
his  death,  is  the  proper  party  to  an  action  for  partition.''^ 
The  wife  of  a  tenant  in  common  may  be  made  a  defendant 
in  an  action  for  partition,  wherein  her  husband  is  plaint- 
iff.'- In  proceedings  by  the  wife  for  the  partition  of  her 
separate  estate,  the  husband  should  be  made  a  defendant.^' 
Before  dower  is  assigned,  the  widow  need  not  be  made  a 
party  to  an  action  for  the  partition  of  real  estate,  in  which 
she  claims  dower.^'  It  has  often  been  held  erroneous  to 
do  so,  and  the  error  will  not  be  cured  by  discontinuing 
as  to  her.'^  At  common  law  the  non-joinder  of  a  defend- 
ant in  an  action  for  partition  is  a  matter  for  abatement 
only.'" 

The  New  York  Code  of  Civil  Procedure  provides    who 
must  be  parties.*^ 

'"'  Harmon  v.  Keeley,  14  Ohio,  502;  i  Miles,  395. 

'■''^  Lowe  V.  Holmes,  17  N.  J.  Eq.  148  ;  9  Cow.  344  ;  ']^  Penn.  St. 
151  ;  24  111.  307  ;  15  Iowa,  361. 

^^  Chalon  v.  Walker,  7  La.  Ann.  477. 

^"^  Foster  v.  Newton,  46  Miss.  661. 

^^  Scott  z*.  Guernsey,  48  N.  Y.  106. 

*^  Roskrans  v.  White,  7  Lansing,  468. 

^•^  Bronson  v.  Gifford,  8  How.  Pr.  389. 

'^  Wood^.  Clute,  I  Sandf.  Ch.  199;  i  Barb,  560;  5  Johns.  80  ; 
8  Id.  558. 

^'  Power  V.  Power,  7  Watts,  205 , 

^>  Hoxhie  v.  Ellis,  4  R.  I.  123. 

a  Every  person  having  an  undivided  share,  in  possession  or 
otherwise,  in  the  property,  as  tenant  in  fee,  for  life,  by  the  curtesy, 
or  for  years  ;  eveiy  person  entitled  to  the  reversion,  remainder,  or 


I06  THE    LAW    OF    PARTITION. 

A  purchaser  upon  a  partition  sale  has  a  right  to 
require  a  good  title,  and  will  not  be  compelled  to  com- 
plete his  purchase  and  accept  a  deed  which  leaves  him  to 
the  uncertainty  of  a  doubtful  title,  or  to  the  hazard  of  a 
contest  with  other  parties  which  will  seriously  affect  the 
value  of  the  property/''  This  subject  has  been  referred  to 
before  in  this  chapter,  but  not  in  as  strong  language  as 
by  this  decision  of  the  New  York  Court  of  Appeals.  All 
owners  must  be  brought  in,  and  their  rights  presented  to 
and  passed  upon  by  the  court  having  jurisdiction  of  the 
action.  Section  451  of  the  New  York  Code  of  Civil  Pro- 
cedure is  general  in  its  terms,  and  applies  to  all  actions 
in  which  service  by  publication  is  made."  An  action  for 
partition  or  sale  of  premises  was  sustained,  where  it 
appeared  that  the  plaintiff's  interest  consisted  of  being 
seized  in  fee  simple  of  certain  undivided  parts  of  all  the 
mines,  ores,  minerals  and  metals,  lying  and  being  upon 
described  premises  ;  with  power  to  go  upon  the  land  to 
work  and  raise  the  same,  and  the  defendant  being  seized 
as  owner  of  the  residue  of  said  part  of  the  premises  and 
the  soil  in  fee.^^     Section  1539  of  the  New  York  Code  of 

inheritance  of  an  undivided  share,  after  the  determination  of  a 
particular  estate  therein  ;  every  person  who,  by  any  contingency, 
contained  in  a  devise,  or  grant,  or  otherwise,  is  or  may  become 
entitled  to  a  beneficial  interest  in  an  undivided  share  thereof; 
every  person  having  an  inchoate  right  of  dower  in  an  undivided 
share  in  the  property  ;  and  every  person  having  a  right  of  dower 
in  the  property,  or  any  part  thereof,  which  has  not  been  admea- 
sured, must  be  made  a  party  to  an  action  for  partition.  But  no 
person,  other  than  a  joint  tenant  or  a  tenant  in  common  of  the 
property,  shall  be  a  plaintiff  in  the  action.    N.  Y.  Code  Civ.  Pro 

§1538. 

47  Jordan  v.  Fitz  Gerald,  ']^  N.  Y.  518. 

48  Bergen  v.  Wyckoff,  11  N.  Y.  Week.  Dig.  570. 

49  Canfield  -u.  Ford,  16  How.  473.  Also  see  21  Alb.  L.  J.  174  ;  7 
Lans.  486  ;  32  Barb.  176. 


PARTIES.  107 

Civil  Procedure  provides  who  may  be  made  parties. 
This  section  is  discretionary  so  far  as  the  plaintiff  in  the 
action  is  concerned,  but  any  person  not  made  a  party 
pursuant  to  section  1539,  is  not  affected  by  the  judgment 
in  the  action.^  It  is  not  a  misjoinder  of  actions  when 
the  complaint  sets  up  the  claim  of  one  of  the  defendants 
to  a  specific  lien  for  moneys  paid  to  extinguish  liens  on 
the  premises  sought  to  be  partitioned,  and  asks  for  an 
account  to  be  taken  of  such  advances.  Creditors  holding 
liens,  simply  as  creditors,  need  not  be  made  parties  at  the 
commencement  of  the  suit.  And  the  claims  of  one 
defendant  may  be  disputed  by  either  of  his  co-defendants 
as  well  as  the  plaintiff,  and  these  claims  may  be  tried  and 
settled  in  a  partition  suit,  if  they  involve  interests  in,  or 
liens  on  the  property  sought  to  be  partitioned.'" 

Under  New  York  statutes  an  actual  partition  or  sale 
under  a  judgment  in  partition  is  effectual  to  bar  the  future 
contingent  interests  of  persons  not  in  esse,  though  no 
notice  is  published  to  bring  in  unknown  parties,  and 
though  such  future  owners  may  take  as  purchasers  under 
a  deed  or  will,  and  not  as  claimants  under  any  of  the 
parties  to  the  action. 

It  seems,  that  independent  of  the  statute,  contingent 
remaindermen,  or  persons    to    take    under    an    executory 

''  The  plaintiff  may,  at  his  election,  make  a  tenant  in  dower 
by  the  curtesy,  for  life,  or  for  years,  of  the  entire  property,  or  a 
creditor,  or  other  person,  having  a  lien  or  interest,  which  attaches 
to  the  entire  property,  a  defendant  in  the  action.  In  that  case, 
the  final  judgment  may  either  award  to  such  a  party  his  or  her 
entire  right  and  interest  or  the  proceeds  thereof,  or  may  reserve 
and  leave  unaffected  his  or  her  right  and  interest,  or  any  portion 
thereof.  A  person  specified  in  this  section,  who  is  not  made  a 
party,  is  not  affected  by  the  judgment  in  the  action.  N.  Y.  Code 
Civ.  Pro.  §  1539. 

''*'  Bogardus  v.  Parker,  7  How.  305. 


I08  THE    LAW    OF    PARTITION. 

devise,  who  may  hereafter  come  into  being,  are  bound  by 
the  judgment  as  being  virtually  represented  by  the  parties 
to  the  action  in  whom  the  present  estate  is  vested."  But 
a  reversioner  is  a  necessary  party,  where  a  bill  is  filed  by 
one  who  is  owner  of  the  undivided  share  of  the  reversion 
as  well  as  of  the  undivided  share  of  the  present  interest 
in  the  property/^  The  wives  of  the  several  owners  are 
proper  parties,  but  not  necessary  parties,  except  in  case 
where  a  sale  of  the  premises  may  be  necessary,  and  in 
such  a  case,  the  party  suing  may  properly  make  his  own 
wife  a  defendant.  The  other  defendants  have  no  right  to 
complain  of  the  fact  that  such  a  wife  is  made  defendant, 
instead  of  plaintiff,  if  she  does  not." 

If  a  male  defendant  marry,  pending  the  litigation  and 
after  a  notice  of  lis  pendens  is  filed,  whether  his  wife  must 
be  made  a  party  or  not  is  yet  a  question  not  fully  decided 
by  the  courts  \  but  it  would  not  seem  from  the  general  rule 
governing  filing  o^  lis  pendens,  and  of  the  commencement 
and  the  revival  of  actions,  that  it  would  be  necessary  to 
open  a  cause  of  action,  after  it  had  been  commenced,  or 
rather,  to  amend  the  proceedings  so  as  to  bring  in  the 
wife  as  a  party  when  the  marriage  occurred  after  the  full 
pendency  of  the  action.  We  have  a  right  to  assume,  upon 
the  examination  of  the  cases  where  this  question  has 
been  before  the  court,  that  if  the  decision  rendered  by 
the  court  had  depended  upon  that  question,  the  decision 
would  have   been    that  it   was  unnecessary  to  bring  the 

51  Mead  v.  Mitchell,  17  N.  Y.  210  ;  citing  2  Blacks.  Com.  194  ; 
Calv.  on  Parties,  48;  Story  Eq.  PI.  §  144  ;  6  Sim.  643;  7  Paige,  554; 
I  Edw.  629  ;  2  Hoff.  Ch.  161  ;  2  Barb.  Ch.  287.  See  16  Hun,  133; 
Sup.  Ct.  Rule  71  ;  48  N.  Y.  106. 

52  Striker  v.  Mott,  2  Paige,  387. 

53  Roskrans  v.  Roskrans,  7  Lans.  486. 


PARTIES. 


109 


wife  in,  in  such  a  case,  as  a  party  defendant."  A  par- 
tition suit  is  an  action  for  the  recovery  of  real  property, 
within  section  452  of  the  old  Code  of  New  York,  so  that 
the  court  may  order  a  person,  not  a  party,  but  having  an 
interest  in  the  subject,  to  be  made  a  party  by  amend- 
ment/* By  the  New  York  Code  of  Civil  Procedure,'^  it  is 
discretionary  with  the  plaintiff,  and  at  his  election, 
whether  to  make  a  creditor,  having  a  Hen  upon  the  undi- 
vided share  or  interest  in  the  property  to  be  partitioned, 
a  defendant  in  the  action.  But  in  case  he  decides  to 
make  such  a  person  a  party  defendant,  he  must  comply 
with  all  the  provisions  set  forth  in  said  section  1540. 
Persons  having  a  share  or  interest  in  the  property,  whose 
names  are  unknown,  or  where  the  share  and  interest  of 
such  person  are  unknown,  or  where  the  name  be  known 
and  the  share  and  interest  unknown,  and  the  summons  is 
served  upon  him  by  publication,  or  personally  outside  of 
the  State,  pursuant  to  a  court  order  for  that  purpose, 
there  must  be  a  notice  subjoined  to  the  summons  stating 
briefly  the  object  of  the  action  and  a  brief  description  of 
the  property.*^     The  publication  of  a  summons,  in   such  a 

^  Jackson  v.  Edwards,  7  Paige,  387,  403.  See  26  Wend.  498. 
See  N.  Y.  Code  Civ.  Pro.  §  1557. 

^■^  Waring  v.  Waring,  3  Abb.  246. 

'  The  plaintiff  may,  at  his  election,  make  a  creditor  having  a 
lien  on  an  undivided  share  or  interest  in  the  property,  a  defend- 
ant in  the  action.  In  that  case,  he  must  set  forth  the  nature  of 
the  lien,  and  specify  the  share  or  interest  to  which  it  attaches.  If 
partition  of  the  property  is  made,  the  lien,  whether  the  creditor  is 
or  is  not  made  a  parly,  shall  thereafter  attach  only  to  the  share  or 
interest  assigned  to  the  party  upon  whose  share  or  interest 
the  lien  attached  ;  which  must  be  first  charged  with  its 
just  proportion  of  the  costs  and  expenses  of  the  action,  in  prefer- 
ence to  the  lien.     Code  Civ.  Pro.  §  1540. 

"  Where  a  defendant  having  a  share  or  interest  in  the  property 
is  unknown,  or  where  his  name  or  part  of  his  name  is  unknown, 
and  the  summons  is  served  upon  him  by  publication,  or  without 


no  THE    LAW    OF    PARTITION. 

case,  in  the  ordinary  form,  is  not  a  substantial  compliance 
with  section  1541, — which  requires  the  notice  to  specify 
the  nature  of  the  action  as  aforesaid, — and  where  the  sum- 
mons is  served  by  publication,  in  the  ordinary  form,  but 
by  such  publication,  if  an  .attempt  is  made  to  bring  in 
unknown  owners,  the  purchaser,  under  a  decree  of  sale, 
wiil  not  be  compelled  to  complete  his  purchase,  because 
the  title  is  defective.'^ 

the  State,  pursuant  to  an  order  for  that  purpose,  as  prescribed  in 
article  second,  of  title  first,  of  chapter  fifth  of  this  act,  the  notice 
subjoined  to  the  copy  of  the  summons  as  published,  or  served 
therewith,  must,  in  addition  to  the  matters  required  in  that 
article,  state  briefly  the  object  of  the  action,  and  contain  a  brief 
description  of  the  property.     N.  Y.  Code  Civ.  Pro.  §  1541. 

56  Sandford  v.  White,  56  N.  Y.  359.  See  21  Wend.  40  ;  11 
How.  277;  2  Abb.  13;  Crary  Pr.  321  ;  3  Wait  Pr.  535  ;  23  Barb. 
303;  6  How.  157;  7  Lans.  486;  2  Williams  Ex.966;  39  Barb.  516; 
Willard  R.  E.  543;  52  N.  Y.  579. 


CHAPTER  VIII. 


INFANTS. 


The  law  protects  the  person  and  the  property  of 
every  minor. ^  The  protection  which  the  law  gives  is  to 
operate  as  a  shield  to  him  to  protect  him  from  improper 
and  improvident  contracts,  but  it  is  not  to  be  used  as  an 
instrument  for  injury  to  others.  An  infant  is  liable  upon 
certain  contracts,  and  certain  other  contracts  are  voidable 
at  his  will,  and  the  defense  of  infancy  is  a  defense  of 
which  he  alone  can  take  advantage,  it  being  personal 
and  for  his  benefit  only.^ 

If  the  real  estate  of  an  infant  be  sold,  the  proceeds 
are  to  be  deemed  real  estate,  until  he  arrives  at  his  major- 
ity, and  in  case  of  his  death,  such  proceeds  descend  to  his 
heirs  as  real  estate.^ 

When  the  infant  arrives  at  his  majority,  and  obtains 
the  proceeds  of  the  sale  of  his  real  estate,  such  proceeds 
are  then  deemed  as  personal  property  ;  and,  on  his  death, 
they  descend  to  his  personal  representatives,  as  such  per- 
sonal property.' 

^  Knapp  Poor  Laws,    ch.  XV.  XVI. 

2  Bouv.  Law  Diet.  793. 

3  Forman  v.  Marsh,  11  N.  Y.  544;  reversing  7  Barb.  215  ;  11  N. 
Y.  Leg.  Obs.  47  ;  16  Barb.  556  ;  47  N.  Y.  21  ;  3  Wlieat.  563;  2  Story 
Eq.  Jur.  §  1357;  6  Ired.  524;  5  Id.  280  ;  Edmunds  Eq.  296  ;  9  Moak 
Eng.  743- 

*  Forman  v.  Marsh,  11  N.  Y.  544. 

[Ill] 


112  THE    LAW    OF    PARTITION. 

An  infant  tenant  in  common  or  joint  tenant  has  the 
same  rights  and  privileges  as  an  adult,  excepting  that 
he  and  his-  property  are  subject  to  the  protection  of  the 
court,  and  to  be  controlled  by  the  court  as  laid  down 
in  the  statutes.  It  may  be  doubtful  whether  mere  articles 
of  agreement  in  equity  will  operate  as  severance  of  joint 
tenancy,  though  the  prevailing  opinion  is  that  they  may. 
But,  when  made  by  an  infant,  such  articles  of  agreement 
do  not  have  this  effect,  and  they  are  voidable  at  the  option 
of  the  infant.  Courts  may  intervene,  under  their  rules 
of  protection  of  the  infant  and  of  probity,  and  carry  out 
such  articles  of  agreement. 

Courts  have  not  been  in  favor  of  the  sale  of  real  estate 
of  a  minor,  and  have  not  allowed  an  infant's  real  estate 
to  be  partitioned,  or  allowed  an  infant  to  be  the  moving 
party  in  a  partition  suit  ;  unless  it  could  be  readily  shown 
that  it  was  for  the  benefit  of  the  infant.  The  law  makes 
provision  for  the  sale  of  the  real  estate  of  minors  by  peti- 
tion and  by  an  order  and  approval  of  the  court.  In  some 
instances,  this  proceeding  is  far  cheaper  and  more  benefi- 
cial than  the  sale  of  the  same  property  by  proceedings  in 
partition.  There  are  instances,  where  it  is  necessary 
that  the  infant  should  be  allowed  to  bring  a  partition 
suit.*    This   section  1534  has  been  placed  in  the  Code  for 

'  An  action  for  the  partition  of  real  property  shall  not  be 
brought  by  an  infant,  except  by  the  written  authority  of  the  sur- 
rogate of  the  county  in  which  the  property,  or  a  part  thereof,  is 
situated.  The  authority  shall  not  be  given,  unless  the  surrogate 
is  satisfied,  by  affidavit  or  other  competent  evidence,  that  the 
interests  of  the  infant  will  be  promoted  by  bringing  the  action. 
A  judgment  for  a  partition  or  sale  shall  not  be  rendered  in  such 
an  action,  unless  the  court  is  satisfied  that  the  interests  of  the 
infant  will  be  promoted  thereby,  and  that  fact  is  expressly  recited 
in  the  judgment.     New  York  Code  Civ.  Pro.  §  1534- 


INFANTS.  113 

the  purpose  of  meeting-  such  necessity,  and  upon  a  careful 
reading  of  that  section  of  the  New  York  Code,  one  will 
see  that  the  court  yet  retains  its  common  law  authority 
over  the  property  of  the  infant.  A  petition  must  be  made, 
and  in  that  petition  the  court  must  be  satisfied  by  proof 
of  some  kind  that  the  partition  will  be  beneficial  to  the 
petitioner.  Sometimes  these  circumstances  may  be  such 
that  the  court  will  deem  it  proper  to  appoint  a  referee  to 
take  evidence  as  to  the  facts  and  circumstances  pertain- 
ing to  the  petition  of  the  infant,  and  report  that  evidence, 
together  with  his  opinion  as  to  the  propriety  of  allowing  a 
suit  of  partition  on  the  part  of  the  infant.  It  has  been 
held,  in  such  a  case,  that  when  the  referee  reported,  '*that 
in  his  opinion  it  would  be  proper  to  allow  said  infant  to 
prosecute  an  action  for  the  partition  or  sale  of  the  real 
estate  mentioned  in  the  petition,"  as  not  being  sufBcient 
to  warrant  the  court  to  order  proceedings  in  such  an 
action. 

The  report  of  the  referee  should  show  the  facts  which 
warrant  such  conclusion,  and  such  facts  should  be  set 
forth  fully  in  the  report,  that  the  court  may  judge  upon 
them  whether  the  necessity  exist  for  a  proceeding  so  pro- 
tracted and  expensive  as  that  sought  to  be  instituted  by 
a  partition  suit.*  It  has  been  held  that  partition  will  not 
be  ordered  upon  application  of  an  infant,  unless  it  be 
made  satisfactorily  to  appear  that  the  interests  of  the 
infant  require  such  partition  or  sale."  The  court  in  allow- 
ing an  infant  to  bring   a    partition    suit    must  appoint    a 

^  Matter  of  Marsac,  15  How.  Pr.  385. 

6  Lansing  v.  Gulick,  26  How.  250  ;  citing  28  Barb.  343  ;  1 1  How. 
176;  9  Barb.  366;  16  Id.  556;  28  Id.  633;  17  Id.  157;  22  N.  Y.    no: 
22  Id.  517;  24  Id.  372,  21  How.  479 ;  34  Barb.    106;  13    How.    104; 
Laws  of  1852,  ch.  277,  §§  I,  2. 
8 


114  THE    LAW    OF    PARTITION. 

guardian  ad li U7n  (or  the  infant.''''  A  general  guardian 
cannot  act,  the  infant  defendant  must  appear  in  the  action 
by  a  guardian  ad  litem  who  must  be  appointed  by  the 
court.  The  guardian  of  a  non-resident  infant  lunatic  may 
properly  petition  for  the  appointment  of  a  guardian  ad 
litem.^  A  party  intending  to  commence  an  action  for 
partition  may,  before  the  service  of  the  summons,  procure 
a  guardian  for  the  minor  defendant  to  be  appointed. 
When  he  has  filed  the  bond,  and  given  notice  thereof  to 
the  party  intending  to  institute  such  action,  he  has  effect- 
ually consented  to  act  as  guardian,  and  accepted  his 
appointment  as  such.  The  summons  and  complaint  in 
such  an  action  should  be  served  upon  him  as  such  guard- 
ian, and  such  service  is  a  proper  service  on  the  minor 
whom  he  represents."  An  infant  over  fourteen  may  apply 
for  the  appointment  of  a  guardian  before  the  service  of 
the  summons.  As  to  those  under  fourteen  an  appoint- 
ment before  service  is  at  most  an  irregularity  to  which 
objection  must  be  taken  within  a  reasonable  time.  It  is 
erroneous  to  allow  an  infant  in  proceedings  in  partition 
to  act  by  a  guardian,  unless  such  guardian  gives  security 
for  the  trust  reposed  in  him,  such  security  to  be  approved 
by  the  court."  When,  upon  the  petition  of  an  infant 
defendant  over  fourteen,  a  guardian  ad  litem  has  been 
appointed,  the  order  is  valid,    though   no   summons   had 

*  A  guardian  ad  litem  for  an  infant  party,  in  an  action  for  par- 
tition,   can  be  appointed  only  by  the  court.     N.  Y.  Code  Civ.  Pro. 

§  1535- 

'  Matter  of   Stratton,  i  Johns.  509;  10  Id.  486;  14  Abb.  299 ;  21 
How.  479  ;  26  Id.  250. 

8  Rogers  t/.  McLean,  34  N.  Y.  536;  31    How.  279;  11  Abb.   Pr. 
440  ;  10  Id.  306. 

9  Athause  7/.  Radde,  3  Bosw.  410. 

10  Struppman  v.  MuUer,  52  How.  211. 


INFANTS.  115 

been  previously  served  upon  the  infant."  An  infant  de- 
fendant who  is  a  married  woman  may  appear  voluntarily 
in  partition,  and  it  is  not  necessary  that  her  husband 
should  join  with  her.^-  A  guardian  is  not  appointed  as  is 
usual  in  other  actions.  He  can  be  appointed  by  the 
court  only,  and  the  appointment  of  a  guardian  ad  litem 
by  a  county  judge  in  an  action  for  partition  is  a  nullity.*' 
It  has  been  held  that  the  county  judge  has  power  to 
appoint  a  guardian  ad  litem  for  an  infant  defendant,  in 
such  an  action  brought  in  the  Supreme  Court.'*  This  is 
directly  adverse  to  the  decision  in  Lyle  v.  Smith  and 
Varsan  v.  Stevens,  above  referred  to,  2  Duer.  635, 
and  also  against  section  1535  of  the  New  York  Code  of 
Civ.  Pro.,  which  has  been  enacted  since  the  decision  in 
25  How. 

The  petition  for  the  appointment  cf  a  guardian  must 
be  verified.  But  the  want  of  a  verification  to  the  petition 
may  be  supplied  after  judgment.  But  it  would  be  unsafe- 
to  dispense  with  the  petition  altogether,  although  it  has. 
been  held,  in  some  instances,  that  perhaps  such  verifica- 
tion might  be  dispensed  with.''^  It  is  not  absolutely  neces- 
sary that  the  guardian  ad  litem  for  an  infant  defendant 
put  in  an  answer."'  The  omission  of  such  a  guardian  to 
file  an  answer,  or  give  notice  of  his  appearance  in  the 
action,  will  not  affect  the  validity  of  a  judgment  that  par- 
tition be  made,  especially  if  an  answer  be  filed  by  virtue 
of  an  order  of  the  court,  as  of  the  time  when  it.might  have 

^1  Varian  v.  Stevens,  2  Duer,  635. 

12  Disbrowz/.  Folger,  5  Abb.  Pr.  53. 

13  Lyle  V.  Smith,  13  How.  Pr.  103. 

1^  Towsey  v.  Harrison,  25  How.   Pr.  266. 

1=*  Van    Wyck  v.  Hardy,  11    Abb.    Pr.    473;  34   N.   Y.    536;  31 
How.  279. 

i<5  Bogert  V.  Bogert,  45  Barb.  121. 


Il6  THE    LAW    OF    PARTITION. 

been  regularly  served  as  a  matter  of  course,  though  such 
order  be  made  after  judgment  be  perfected,  and  such 
answer  be  filed  nunc  pro  tunc}'^  A  variance  between  the 
name  of  an  infant  as  stated  in  the  complaint  and  the 
petition  for  the  appointment  of  a  guardian  may  be 
disregarded,  where  such  variance  is  immaterial." 

The  guardian  must  have  no  adverse  interest  to  that  of 
his  ward,  and  the  title  is  not  defective,  if  the  petition  for 
his  appointment  fails  to  state  that  fact."  If  no  guardian 
is  appointed  the  decree  is  irregular,  and  the  error  cannot 
be  excused,  though  the  infant  has  become  of  age  and  ten- 
ders a  release.^"  The  guardian  must  be  appointed  by  the 
court.  If  appointed  by  the  surrogate,  he  is  not  compe- 
tent to  act  in  the  case."' 

The  guardian  must  give  a  sufficient  bond  for  the  pro- 
tection of  the  interests  of  the  infant  in  the  estate  to  be 
partitioned."  '^  The  bond  must  be  signed  by  the  guardian 
himself.  If  signed  by  the  sureties  alone,  it  would  be 
insufficient."^  The  bond  may  be  amended  on  application 
of  all  the  obligors,  and  on  the  leave  of  the  court,  to  be 
obtained  on  petition  specifying  the  alterations  required  to 

1'^  Athause  v.  Radde,  3  Bosw.  410.      i^  2  Duer,  635. 
19  5  Abb.  Pr.  53.  20  2  Edw.  69. 

21  Matter  of  Stratton,  i  Johns.  509  ;  cited  in  10  Johns.  486. 

22  Clark  V.  Clark,  14  Abb.  Pr.  299  ;  21  How.  479;  26  Id.  250. 

'  The  security  to  be  given,  by  the  guardian  ad  h'tetn  for  an 
infant  party,  in  an  action  for  partition,  must  be  a  bond  to  the 
people  of  this  State,  executed  by  him  and  one  or  more  sureties, 
as  the  court  directs,  in  a  sum  fixed  by  the  court,  conditioned  for 
the  faithful  discharge  of  the  trust  committed  to  him  as  guardian, 
and  to  render  a  just  and  true  account  of  his  guardianship,  in  any 
court  or  place,  when  thereunto  required.  The  bond  must  be  filed 
with  the  clerk,  before  the  guardian  enters  into  the  execution  of 
his  duties  ;  and  it  can  not  be  dispensed  with,  although  he  is  the 
general  guardian  of  the  infant.     N.  V.  Code  of  Civ.  Pro.  \  1536. 

23  Jennings  v,  Jennings,  2  Abb.  Pr.  6 ;  14  Id.  299. 


INFANTS.  I  I  7 

be  made,  the  reasons  for  them,  accompanied  with  the  con- 
sent of  the  sureties,  and  their  agreement  to  execute  and 
acknowledge  the  amended  bond."*  The  bond  should  be 
filed  before  the  guardian  enters  upon  his  duties,  but  it 
may  be  ordered  to  be  filed  mine  pro  tunc  at  any  stage  of 
the  action,  or  even  after  judgment  and  sale.  The  failure 
to  file  the  bond  is  a  mere  irregularity  which  is  amendable, 
and  does  not  affect  the  jurisdiction  of  the  court  or  the 
validity  of  a  sale  under  its  judgment." 

Chapter  277  of  the  Laws  of  1852, — authorizing  the  fil- 
ing of  a  guardian's  bond  after  judgment  in  cases  of  actual 
partition, — is  an  enabling  and  not  a  restricting  act.  It 
does  not  empower  the  court  having  original  jurisdiction  to 
amend  an  irregularity  by  ordering  such  bond  to  be  filed 
before  and  after  sale,  as  well  as  on  actual  partition.  The 
bond  of  the  guardian  ad  litem  of  an  infant  defendant  in 
partition  may  be  made  direct  to  the  infant  instead  of  to 
the  People  of  the  State,  provided  the  order  appointing  the 
guardian  so  direct. "''  In  proceedings  in  partition,  where 
an  infant  is  interested,  a  special  guardian  ad  litem  must 
be  appointed  by  the  court,  under  the  act.  It  is  not  sufficient 
that  the  notice  and  petition  are  served  on  his  testament- 
ary or  other  general  guardian.^"  Service  of  summons 
upon  a  non-resident  infant  defendant  in  partition  is  not 
necessary,  provided  the  infant  voluntarily  appear  in  the 
action  by  its  guardian  ad  litem;  and  the  insertion  of  the 
words  "  by  publication  "  instead  of  the  words  "  without 
the  State  of  New  York,"  in  the  notice  indorsed  upon  the 

2^  Shaw  V.  Lawrence,  14  How.  94. 

25  Croghan  v.  Livingstone,  17  N.  Y.  218  ;  citing  2  Saund.  212  ; 
7  Johns.  373  ;  Appendix  to  McPhcrson  on  Infants  ;  3  Oilman,  435; 
18  Wend.  513  ;  Gra.  Pr.  170.     See  25  Barb.  336. 

^o  Thistle  V.  Thistle,  66  How.  472  ;  5  Civ  Pro.  43. 

27  Sharp  V.  Pell,  10  Johns.  486.     See  i  Daly,  300;  i  Curt.  459. 


Il8  -  THE    LAW    OF    PARTITION. 

summons  served  personally  without  the  State,  under  an 
order  of  publication,  is  not  a  valid  objection  to  title — it  is 
not  a  jurisdictional  question. ^^ 

An  infant  defendant  must  defend  by  a  guardian  ad 
litem.  He  cannot  appear  and  defend  by  an  attorney, 
instead  of  a  guardian."'  The  plaintiff  may  make  applica- 
tion for  the  appointment  of  a  guardian  for  an  infant  defend- 
ant. If  the  defendant  be  a  non-resident,  the  application 
may  be  made  without  previous  service  of  the  summons 
or  previous  notice  to  said  infant  defendant.  This  ques- 
tion was  before  the  New  York  court  of  appeals,  as  follows. 
Upon  the  petition  of  the  plaintiff  in  a  partition  suit  an 
order  was  made,  as  prescribed  by  the  provisions  of  the 
Code,  appointing  D  as  guardian  ad  litefn  for  certain  non- 
resident infant  defendants,  unless  they,  or  some  one  in 
their  behalf,  should,  within  a  time  specified,  after  service 
upon  them  of  a  copy  of  the  order,  procure  a  guardian  to 
be  appointed,  and  directing  service  upon  the  infants  and 
their  father.  Service  was  made  as  directed,  and  at  the 
expiration  of  the  time  limited,  no  steps  having  been  taken 
by  or  in  behalf  of  the  infants,  D  was  appointed  such 
guardian,  and  duly  qualified.  The  summons  was  served 
upon  him,  and  the  infants  appeared  by  him  and  answered. 
The  court  held  that  this  was  sufficient,  both  under  the 
provision  of  the  Code  and  the  provisions  of  the  Re- 
vised Statutes  in  reference  to  proceedings  in  partition, 
which  are  made  applicable  for  partition  under  the  Code ; 
and,  it  appearing  that  the  court  had  jurisdiction  of  the 
subject-matter,  that  the  sale  in  pursuance  of  a  judgment 

28  66  How.  Pr.  472. 

29  Comstock  V.  Carr,  6  Wend.  526.  See  60  Barb.  122  ;  41  How. 
Pr.  46  ;  12  Am.  R.  354  ;  47  Miss.  686. 


INFANTS.  1 1 9 

in  an  action  gave  a  valid  title  as  against  said  non-resident 
infant  defendants.^" 

It  was  argued  in  this  case  that  the  court  did  not 
acquire  jurisdiction  of  the  non-resident  infant  defendants, 
as  they  were  not  served  with  the  summons  either  person- 
ally or  by  publication."  But  on  the  other  hand  it  was 
argued  that  the  constitution  does  not  positively  require 
personal  notice  in  order  to  constitute  legal  proceedings 
"  due  process  of  law."  It  belongs  to  the  legislature  to  de- 
termine, in  the  particular  instance,  whether  the  case  calls 
for  this  kind  of  exceptional  legislation,  and  what  man- 
ner of  constructive  notice  shall  be  sufficient  to  reasonably 
apprise  the  party  proceeded  against,  of  the  legal  steps 
which  are  taken  against  him.''"  It  was  also  argued  that  the 
substance  of  the  proceeding  to  partition  land  is  not  chang- 
ed by  the  Code,  and  the  various  steps  provided  by  the 
Revised  Statutes  are  to  be  taken  in  the  same  manner  and 
the  like  proceedings  had,  as  if  the  former  had  not  been 
changed,  adapting  the  same  as  to  the  new  form.^^  And 
that  it  was  sufficient  to  serve  the  summons  upon  the 
guardian  ad  litem,  and  not  upon  the  infant  ;  and  that,  the 
guardian  ad  litem  having  appeared  and  answered  for  the 
infants  defendants,  such  appearance  and  answer  was 
equivalent  to  an  appearance  by  them  in  the  action  as  abso- 
lutely as  if  they  had  been  of  full  age  and  appeared  by 
an  attorney.     The  claim  was  that  the  court  had  jurisdic- 

30  Gotendorf  z/.  Goldschmidt,  83  N.  Y.  no. 

31  N.  Y.  Code  Civ.  Pro.  §§  127,134,135,  139;  2  Duer,  635  ; 
5  Abb.  Pr.  53;  17  N.  Y.  218  ;  19  Abb.  Pr.  161  ;  11  Id.  440;  34  N.  Y. 

536. 

3-  Matter  of  Empire  Bank,  18  N.  Y.  215;  Schwengerz'.  Hickok, 
53  N.  Y.  284. 

33  Sandford  t/.  White,  56  N.Y.  359.  See  62  N.Y.  75;  13H0W.  Pr. 
105 ;  34  N.  Y.  542 ;  2  R.  S.  317,  §  3 ;  Roger  v.  McLean,  34  N.  Y.  542. 


I20  THE    LAW    OF    PARTITION. 

tion  to  pass  upon  a  question  of  the  insufficiency  of  the 
proof  of  title,  and  having  adjudicated  upon  that  question, 
the  judgment  was  vaHd,  and  could  not  be  questioned  col- 
laterally.** 

The  fact  that  one  of  the  parties  interested  in  the  par- 
tition of  an  estate  is  an  infant,  or  a  lunatic,  or  an  habitual 
drunkard,  will  not  deprive  other  parties  in  such  interest 
of  their  right  to  a  partition  and  sale  of  the  premises  so 
held  in  common  by  them.  But,  before  the  interest  of  the 
infant,  lunatic,  or  habitual  drunkard  can  be  disposed  of, 
and  his  title  vested  in  a  purchaser,  he  must,  in  some 
proper  form,  be  brought  before  the  court,  and  his  rights 
passed  upon  and  protected.  If,  in  bringing  a  ward  into 
court,  or  in  the  proceedings  in  court,  there  has  been  an 
irregularity,  that  irregularity  may  be  cured  by  subsequent 
amendment  under  the  order  of  the  court  having  jurisdic- 
tion of  the  parties  and  the  subject-matter  in  the  first 
instance.^* 

Where  an  estate  was  granted  during  the  joint  lives  of 
a  husband  and  wife,  with  power  to  the  wife  of  appointing 
the  fee  either  by  deed  or  will  ;  and  if  she  die  before 
her  husband,  without  executing  the  power,  the  estate  to 
go  to  her  issue  ;  and  in  default  of  issue,  to  her  right  heirs 
— she  taking  the  absolute  fee,  if  she  survive  her  husband; 
it  was  held,  that  the  wife  had  a  general  and  beneficial 
power,  within  the  provisions  of  the  statute,  of  appointing 
the  fee  ;  that  the  master's  sale  under  a  decree  in  partition 
suit  would  not  destroy  the  contingent  interests  of  her 
children,  and  that  the  only  mode  of  conveying  the  estate 


3*  Blakeley  v.  Calder,  15  N.  Y.  619.    See  18  Id.  355;  47  Id.  404. 
35  Rogers  2/.  McLean,  34  N.  Y.  536;  citing  17  Id.  218;   11  Abb. 
Pr.  444 ;  6  How.  194. 


INFANTS.  I  2  I 

freed  from  the  children  was  by  deed  duly  acknowledged, 
or  by  last  will  and  testament.^" 

The  interests  of  the  guardian  ad  litem  in  the  action 
or  in  the  premises  sought  to  be  partitioned,  should  in  no 
way  be  adverse  to  that  of  the  infant,  and  in  case  the 
interest  of  the  guardian  is  antagonistic  to  the  rights  of 
the  infant,  which  fact  appears  on  the  face  of  the  proceed- 
ings, a  sale  under  such  proceedings  \\\\\  be  void  as  against 
the  infant.^'  When  an  infant  is  a  party  to  the  proceedings, 
the  court  may  decree  his  conveyances  to  be  binding  on  him, 
unless  he  shows  cause  against  it  after  arriving  of  age.'' 
Where  land  acquired  by  a  testator  after  the  making  of 
his  will  is  conveyed  by  him  to  a  child,  by  way  of  advances, 
in  making  partition  it  is  to  be  estimated  according  to  its 
value  at  the  time  of  its  conveyance,  and  the  residue  of 
the  real  estate  at  its  worth  at  the  time  of  the  testator's 
death.'^ 

The  court  has  jurisdiction  to  charge  reversionary  prop- 
erty of  infants  with  money  required  for  their  mainte- 
nance, even  where  some  of  the  infants  for  whose  benefit 
the  money  is  raised  may  not  ultimately  become  entitled 
to  possession  of  the  property  charged.  A  security  for  this 
purpose  approved, with  a  provision  for  restoring  the  money 
by  means  of  an  insurance  against  the  contingency  may  be 
ordered.'"  On  an  application  by  an  infant  for  maintenance, 
the  court  has  jurisdiction,  without  suit,  to  charge  the 
expenses  of  his  maintenance  and  the  cost  of  the  applica- 

3''  Jackson  v.  Edwards,  22  Wend.  498.  See  i  Hopk.  436  ;  3 
Paige,  586. 

^'^  O'Connor  2/.  Carver,  12  Heisk.  (Tenn.)436;  20  Moak  Eng.  665. 

38  Jackson  v.  Edwards,  7  Paige,  386. 

^'•*  Toomer  v.  Toomer,  i  Smith,  93. 

4"  De  Witte  v.  Palin,  3  Moak  Eng.  723. 


122  THE    LAW    OF    PARTITION, 

tion  on  the  corpus  of  a  freehold  estate  to  which  he  is 
entitled  in  fee."  Where  an  infant  is  entitled  both  at  law 
and  in  equity  to  real  estate  as  against  another  who  is  in 
wrongful  possession,  he  is  entitled  to  recover  in  equity  on 
a  bill  stating  these  facts  and  asking  a  declaration  of  title 
and  account,  and  may  join  adult  remaindermen  as  co- 
plaintiffs."' 

An  infant  defendant  must,  in  all  cases,  appear  and 
defend  by  guardian.*'  The  substantial  object  of  this 
requirement  of  the  law  is  the  protection  of  the  infant,  and, 
in  fact,  the  protection  of  all  persons  whom  the  law  sees 
are  incompetent  to  choose  their  own  attorney,  or  conduct 
their  own  litigations.  An  infant  cannot,  in  his  infancy, 
waive  the  defect  that  he  did  not  appear  by  guardian.**  The 
irregularity  of  the  appearance  and  answer  of  an  infant 
by  an  attorney,  and  of  the  trial  and  verdict  upon  an  issue 
found,  is  an  error  of  fact,  for  which  the  courts  have  set  aside 
the  judgment  after  it  had  been  entered.*^  If  the  defendant 
be  of  full  age  at  the  time  he  appears  and  pleads  his 
infancy,  he  may,  of  course,  appear  and  plead  by  an  attor- 
ney of  his  own  choice  ;  and  it  is  held  that  where  a  defend- 
ant has,  by  his  laches,  deprived  himself  of  any  legal  right 
to  set  up  the  defense  of  infancy  to  avoid  his  contract,  the 
court  Avill  not  aid  him.*"  In  Maryland  the  courts  have 
held  that  where  a  judgment  was  entered  against  an  infant, 
who  appeared  by  attorney,  and  not  by  a  guardian,  he 
knowing  of  its  existence,  and  how  it  was  obtained,  and 

*i  In  re  Howarth,  5  Moak  Eng.  632. 

*2  Howard  v.  Earl  of  Shrewsbury,  9  Moak  Eng.  603. 

^3  Knapp  V.  Crosby,  i  Mass.  479.    See  8  Johns.  418;  6  Wend.  526. 

44  Fairweather  v.  Satterly,  7  Robt.  546. 

45  Maynard  v.  Downer,  13    Wend.  575;  14  John.   417;  2  Code 
Rep.  (N.Y.)  128;  51  Barb.  222. 

46  Graham  v.  Pinckney,  7  Robt.  (N.  Y.)  147  ;  44  How.  Pr.  423. 


INFANTS.  123 

taking  no  steps  to  avoid  it,  until  six  years  after  he  became 
of  age,  such  delay  amounted  to  laches  so  as  to  deprive 
him  of  the  right  to  set  aside  the  judgment  for  irregularity.*' 
Infancy  must  be  specially  pleaded.^^  But  in  some  juris- 
dictions, it  is  held  that  infancy  may  be  given  in  evidence 
under  the  general  issue  in  assumpsit.'-'  If,  to  a  plea  of 
infancy,  the  plaintiff  reply  denying  the  infancy,  it  is  incum- 
bent on  the  defendant  to  prove  his  infancy.^"  An  adult 
cannot  plead  in  abatement  the  infancy  of  a  co-defendant,''^ 

47  Kemp  ■z^.  Cook,  18  Md.  130. 

^  Roe  z/.  Angevine,  7  Hun,  679;  i  Chitty  PI.  503:6  Bush,  473; 
3  E.  D.  Smith,  597  ;  24  Barb.  150, 

49  Kimball  v.  Lamson,  2  Vt.  138;  38  Id.  494;  Cutts  z/.  Gordon, 
13  Maine,  474. 

50  Bortwick  v.  Carruthers,  i  Term  R.  648. 

51  Hallam  v.  Mumford,  i  Root,  58.     Sees  Johns.  160. 


CHAPTER  IX. 

JURISDICTION. 

Jurisdiction  is  given  by  the  law  of  the  sovereignty  of 
the  tribunal,  and  is  held  sufficient  everywhere,  at  least  as 
to  all  the  property  within  the  sovereignty  of  the  tribunal 
granting  such  jurisdiction.^  It  extends  not  only  to  prop- 
erty, but  to  persons  upon  whom  process  is  actually  and 
personally  served  within  the  territorial  limits  of  the  juris- 
diction, to  those  persons  who  appear  either  personally,  or 
by  attorney,  and  by  their  pleadings  or  appearance  admit 
the  jurisdiction  of  the  court."  A  person  may  appear,  upon 
whom  no  process  has  been  served,  for  the  express  and 
only  purpose  of  objecting  to  the  jurisdiction  of  the  court  ; 
such  an  appearance  cannot  be  construed  as  admitting 
that  the  court  has  any  jurisdiction,  either  of  the  subject- 
matter  or  of  the  person  thus  appearing.^  When  the  judg- 
ment of  a  foreign  court  is  produced  by  the  party  here 
to  justify  himself  in  the  execution  of  such  judgment  in 
the  country  in  which  it  was  rendered,  and  it  appears 
that  the  court  rendering  it  had  jurisdiction  of  the  cause, 
the  justification  is  admitted,  and  the  regularity  of  the 
proceedings  is  not  to  be  drawn  in  question.  But,  on 
the   other  hand,  if  the  foreign   court   had  no  jurisdiction 

1  2  Blatchf.  427;  27  Mass.  594;   i   R.  I.  285. 
Tex.  275  ;  4  N.  Y.  375  ;  8  Ga.  83. 


2  6  Tex.  275,  4  i>.  I.  j/5  , 

3  37  N.  H.  9 ;  2  Sandf.  717. 
[124] 


JURISDICTION.  125 

in    the   case,   the  justification    will   be  rejected,  without 
inquiring  into  the  merits  of  the  judgment.     The  foreign 
court  must  have  had  jurisdiction  of  the  parties   as  well  as 
of  the  cause,  for  its  judgment  to  be  entitled  to  the  full  faith 
and  credit  mentioned  in  the  Federal  Constitution."   In  par- 
tition, usually  the  question  of  the  jurisdiction  of  a  foreign 
court  will  not  arise.    But,  one  might  die  seized  of  lands  in 
two  or  more  States,  and  in  the  settlement  of  the  estate 
of  the  deceased,  where  he  died,  the  question  of  the  juris- 
diction of  foreign  courts  might  arise  upon  a  division  of  the 
property,  whether  that   division  should  be  by  partition  or 
otherwise,  and  the  reference  to  the  case  of  Bissell  against 
Briggs  is  of  interest  in  this  work,  only  so  far  as  the  judg- 
ment of  a  court  of  one  State  might  be  binding  relative  to 
the    property  in   that    State    upon   the  settlement  of  the 
whole  estate  in  another  jurisdiction.    Jurisdiction  must  be 
either  of  the  cause, — which  is  acquired  by  exercising  powers 
conferred    by   law    over   property   within    the    territorial 
limits  of  the  court, — or  of  the  person, — which  is  acquired 
by  actual  service  of  the  process  upon  the  individual  sought 
to   be  brought  into  court,  or  his  personal  appearance  in 
such  court.     The  question  of  jurisdiction  as  to  property  is 
to  be  determined  according  to  the  law  of  the  sovereignty 
granting    the    power   to    the    court.       The    question     of 
jurisdiction  of  the  person  is  simply  a  question  of  fact, — that 
is,  of  personal  service  or  of  appearance.      The  court    of 
general  jurisdiction  is  presumed  to  be  acting  within    its 
jurisdiction  till  the  contrary  is  shown.''  The  court  of  lim- 
ited jurisdiction  is  one  of  which  the  jurisdiction  delegated 
to  it  by  its  sovereign    power,  and    a   jurisdiction    of  the 

*  Bissell  77.  Briggs,  9  Mass.  462. 

5  10  Ga.  371  ;   10  Barb.  97  ;  3  111.  269. 


126  THE    LAW    OF    PARTITION, 

subject-matter,  which  will  appear  upon  the  papers  before 
it  in  all  cases  ;  and  its  record  must  show  that  its  acts 
are  within  the  power  granted  it  by  the  sovereign." 

It  is  rarely,  if  ever,  too  late  to  object  to  the  jurisdiction 
of  a  court  where  the  want  of  power  to  hear  and  determine 
appears  on  the  face  of  the  proceedings.'  The  jurisdiction 
of  State  courts  over  the  subject-matter  of  an  action,  where 
it  is  based  upon  a  contract,  or  is  for  the  recovery  of  prop- 
erty where  a  personal  descent  depends  upon  the  means  by 
which  plaintift's  title  was  acquired,  and  a  right  to  property 
given  by  act  of  Congress,  may  be  protected  in  a  State 
court  in  the  same  way,  and  to  the  same  extent,  as  though 
derived  from  any  other  source.' 

The  Supreme  Court  is  a  court  of  general  jurisdiction,' 
and,  as  such,  it  has  jurisdiction  of  actions  for  the  partition 
or  sale  of  real  and  personal  property  being  within  its  ter- 
ritorial power,  but  has  no  power  to  consolidate  two 
actions  for  partition,  where  the  subject  of  one  is  land  sit- 
uate in  one  county,  and  the  subject  of  the  other  action  is 
land  situate  in  another  county,  and  where  one  or  more  of 
the  parties  to  the  one  are  not  parties  to  or  interested  in 
the  subject  of  the  other  action.  In  such  a  case  the  consol- 
idation does  not  consolidate.  The  two  actions  remain  as 
two  actions,  and  cannot  possibly  become  one."  This  court 
has  no  power,  against  the  objection  of  the  parties  in  inter- 
est, to  change  the  place  of  trial  of  a  local  action  which  is 
brought  for  partition  of  lands,  to  a  county  other  than  the 

6  27  Ala.  291  ;  26  Mo.  65  ;  i   Dougl.  384.;  5  Harr.  387;  28  Miss. 
Til  \  I  Greene,  78;  2  How.  319. 

7  Delafield  v.  State   of  111.,  2    Hill,  159.    See  i    Abb.  Pr.  392  ;  6 
Parker,  153. 

8  Cook  -v.  Whipple,  55  N.  Y.  150, 

9  N.  Y.  Code  Civ.  Pro.  §  217. 

10  Mayor  v.  Coffin,  90  N.  Y.  312. 


JURISDICTION.  127 

county  where  the  land  is  situate."  The  Supreme  Court, 
sitting  at  a  Special  Term,  has  all  the  jurisdiction,  both 
legal  and  equitable,  conferred  by  the  statute  on  the  Court 
of  Chancery  and  the  former  Supreme  Court  in  proceed- 
ings for  partition,  and  is  to  conduct  the  same,  so  far  as 
they  are  applicable,  in  conformity  with  the  provisions  of 
the  Revised  Statutes.  And  it  does  not  follow  that  an 
action  in  partition  is  a  suit  in  equity  because  it  is  on  the 
calendar  and  moved  for  hearing  at  the  Special  Term.  It  is 
before  the  Supreme  Court,  which  may  take  such  action  as 
the  condition  of  the  pleadings  and  proceedings  requires  ; 
and  if  there  be  an  issue  of  fact  in  the  case,  upon  the  result 
of  which  depends  the  title  of  any  of  the  parties,  it  be- 
comes the  duty,  and  undoubtedly,  the  right  of  the  court, 
to  send  such  issues  to  a  trial  by  the  jury,  either  upon  a 
settlement  of  special  issues,  or  on  the  pleadings  them- 
selves ;  and,  after  the  determination  of  those  issues,  so 
sent  for  trial  to  a  jury,  then,  to  proceed  in  the  action  as 
provided  by  the  Revised  Statutes.'^ 

In  one  case  the  Supreme  Court,  in  an  action  for  the 
partition  of  land,  to  which  all  persons  having  an  interest 
in  the  land  were  parties,  rendered  a  judgment  directing 
a  sale  of  the  premises.  The  purchaser  at  the  sale  declined 
to  complete  his  purchase,  on  the  ground  that  the  plaint- 
iff in  the  action  was  not  in  possession  nor  entitled  to  the 
immediate  possession  of  any  portion  of  the  land,  but  was 
only  a  tenant  in  common,  with  others,  of  an  estate  in 
remainder,  after  the  death  of  one  of  the  defendants,  and 
that  the  court  consequently  had    no  jurisdiction  to  enter- 

1'  Bush  V.  Treadwell,  11  Abb.  N.  S.  27.  See  43  N.  Y.  224; 
42  Id.  547  ;  59  Id.  124;  3  Abb.  14;  58  How.  183;  6  Abb.  N.  C.  69; 
3  Law  Hul.  66. 

i'-^  Hewlett  V.  Wood,  3  Ilun,  736. 


128  THE     LAW    OF    PARTITION. 

tain  the  action  :  it  was  held,  that  whether  a  party  hav- 
ing a  vested  future  estate  in  lands,  without  a  present 
right  to  possession,  is  entitled  to  institute  proceedings 
for  partition  or  not,  yet  the  court  having  general  original 
jurisdiction  of  the  subject-matter,  and  jurisdiction  of  the 
parties  in  interest,  they  were  concluded  by  its  judgment, 
and  that  the  purchaser  at  the  sale  under  it  derived  a 
perfect  title."  A  judgment  in  partition  is  binding  upon 
all  parties,  though  minors  or  non-residents,  if  the  court 
acquire  jurisdiction  of  them,  and  of  the  subject-matter. 
And  a  sale  under  proceedings  is  effectual  to  bar  the  future 
contingent  interests  of  persons  not  hi  esse,  though  no  no- 
tice be  published  to  bring  in  unknown  parties;  and  though 
such  parties,  not  then  in  esse,  may  take  as  purchasers 
under  a  deed  or  will,  and  not  as  claimants  under  any  of 
the  parties  to  the  suit.*^  The  Supreme  Court,  as  a  court 
of  equity,  has  no  inherent  original  authority  to  direct  the 
sale  of  the  real  estate  of  infants  ;  and  the  general  provis- 
ions of  the  statute  declaring  that  "  No  real  estate,  or  term 
of  years,  shall  be  sold,  leased  or  disposed  of  in  any  manner 
against  the  provisions  of  any  last  will,  or  conveyance  by 
which  such  estate  was  devised  to  such  infant,"  was  a  pro- 
hibition upon  the  power  of  the  court  to  decree  partition.'* 
The  Supreme  Court  has  jurisdiction  of  all  actions  for 
partition,  and  while  the  proceedings  are  regulated  by 
statute,  it  is  for  the  court  to  determine  whether  the  stat- 
ute   has    been    complied    with,   and   to    decide     whether 

13  Blakeley  v.  Calder,  15  N.  Y,  617,  ante.  See  66  N.  Y.  37  ;  11 
Abb.  N.  C.  38  ;  2  Civ.  Pro.  140. 

1^  Clemens  t-  Clemens,  37  N.  Y.  59,  See  60  Barb.  366  ;  citing 
24  How.  183;  36  Barb.  88;  24  Penn.  St.  242  ;  3  N.  Y.  511  ;  12  Id. 
184  ;  34  Barb.  156  ;  29  Id.  650  ;  3  Sandf.  371 ;  27  Barb.  272  ;  35  N. 
Y.  653. 

i^Mullerz/.  Struppmann,  55  How.  ^71, ante. 


JURISDICTION.  '  I  20 

the  case  is  a  proper  one  to  allow  partition  or  sale  ;  and 
if  the  court  errs,  the  error  can  only  be  reviewed  by  excep- 
tions properly  taken.^^  If  the  error  has  been  committed, 
the  review  of  that  error  must  be  upon  appeal,  and  such 
appeal  only  brings  before  the  appellate  court,  such  things 
as  were  duly  excepted  to  upon  the  trial  in  the  lower  tri- 
bunal." No  point  can  be  raised  in  the  appellate  court, 
which  was  not  raised  and  argued  in  the  court  below." 

In  Massachusetts,  partition  may  be  had  upon  a  peti- 
tion, and  if,  upon  a  petition  for  such  purpose,  it  appears 
that  the  parties  claim  by  descent  from  the  same  ancestor, 
and  that  advancements  have  been  made  to  some  of  the 
parties,  not  yet  settled  in  the  probate  office,  the  Supreme 
Court  is  not  thereby  ousted  of  its  jurisdiction  in  the  case."' 
The  Supreme  Court  of  that  State  will  not  sustain  an, 
appeal  from  a  judgment  of  the  Common  Pleas,  accepting 
the  return  of  commissioners  appointed  to  make  partition? 
pursuant  to  a  petition  for  that  purpose.'"  A  judgment 
for  partition  upon  a  petition,  where  public  notice  has- 
been  given  pursuant  to  the  statute,  binds  the  right  of 
possession  of  one  claiming  to  own  in  severalty  part  of  the- 
land  described  in  the  petition,  and  of  which  partition  is, 
prayed  for.  "^ 

A  probate  judge  is  not  authorized  to  cause  partition 
of  the    share  of  one  heir  or  devisee,  leaving    the    others 

16  Howell  V.  Mills,  56  N.  Y.  226  ;  citing  15   N.  Y.  617,  aiiie  ;  47 
Id.2i. 

"  Keyes  t/.  Devlin,  3  E.  D.  Smith,  434;  26  N.  Y.  616;  38  Id. 
305- 

i^Gelston  v.  Hoyt,  13  Johns.-  561  ;  5  N.  Y.  136,  492  ;  8  Barb.' 
351  ;  5  How.  Pr.  323;  12  Barb.  9  ;  i  Hilt.  161  ;  17  Id.  469;  2  Cow. 
31  ;  2  Wend.  146 ;  5  Id.  620 ;  4  E.  D.  Smith,    178  ;  12  Wend.  399. 

1'''  Bemis  v.  Stearns,  16  Mass.  200. 

'^^  Pierce  v,  Oliver,  13  Mass.  211. 

21  Cook  V.  Allen,  2  Mass.  462.    See  13  Id.  2U. 
9 


130  THE     LAW    OF     PARTITION. 

tenants  in  common  ;  but  he  may  cause  the  whole  land 
to  be  divided  among  all  the  heirs  and  devisees."  And 
where  a  devisee  who  had  conveyed  part  of  his  share, 
prayed  that  the  residue  might  be  set  off  to  him  in  seve- 
ralty, and  the  judge  of  probate,  without  noticing  the  con- 
veyance, decreed  that  partition  be  made  among  the 
devisees  according  to  the  will,  the  decree  was  not  erro- 
neous on  that  account.  The  statute  of  1817,  chapter  190, 
section  24,  does  not  bind  the  judge  to  divide  real  estate 
among  heirs  or  devisees  ;  and  where  the  estate  was 
small,  and  the  petition  of  one  devisee  for  partition  was 
opposed  by  two  others  wishing  to  hold  in  common,  the 
Supreme  Court  reversed  the  decree  of  the  judge  of  probate 
for  partition.  The  probate  court  is  authorized  to  make 
partition  of  real  estate  among  the  heirs  or  devisees  ;  but 
when  one  of  them  has  conveyed  his  property,  the  juris- 
diction of  that  court  in  the  premises  is  at  an  end.^'  The 
judge  of  probate  has  no  authority  to  order  partition 
among  devisees  of  a  remainder  ;  although,  if  it  might  be 
construed  that  he  had  such  authority,  it  would  be  limited 
to  remainders  which  have  become  vested  at  the  time  of 
the  partition.^  A  decree  of  the  judge  of  probate,  assign- 
ing the  whole  of  the  estate  of  the  intestate  to  an  eldest 
son,  on  condition  that  he  pay  to  the  other  children  the 
value  of  their  respective  shares  within  three  months,  in 
money,  but  without  taking  security  for  the  same,  may  be 
avoided  by  the  other  children  as  not  authorized  by  the 
statute."^ 

A  decree  of  the  judge  of  probate  allowing  the    return 

22  Arms  V.  Lyman,  5  Pick.  210. 

23  Pond  V.  Pond,  13  Mass.  413. 

2*  Wainwright  v.  Dorr,  13  Pick,  333. 

25Newhall  v.  Sadler,  16  Mass.  122.    See  7  Pick.  209. 


JURISDICTION.  1 3  I 

of  commissioners,  dividing  an  estate  among  heirs,  and 
assigning  the  whole  to  one,  that  heir  paying  to  the  other 
heirs,  respectively,  a  certain  sum,  though  void  as  to  one 
of  the  heirs,  who  had  no  notice,  was  held  good  as  to 
another,  who  assented  to  the  assignment,  and  received 
the  sum  awarded  to  her  by  the  commissioners.'^ 

A  county  court  has  jurisdiction  of  actions  for  the  par- 
tition of  real  property."  Of  course,  the  general  jurisdic- 
tion of  a  county  court  cannot  extend  in  such  cases  to 
land  lying  outside  of  the  county,  in  which  such  court 
exists,  as  a  county  court  is  a  local  court,  and  a  court  of 
limited  jurisdiction,  confined  in  most  instances  to  actions 
arising  within  the  county  which  is  the  territorial  juris- 
diction of  such  court.  The  statute  defining  the  jurisdic- 
tion of  the  county  courts  is  constitutional,  so  far  as  it 
confers  upon  those  courts  jurisdiction  in  proceedings  to 
obtain  partition  of  land.-*  The  ordinary  actions  at  law, 
in  use  when  the  statute  was  framed,  cannot  be  made 
special  cases  by  calling  them  so  ;  but  the  proceedings  to 
obtain  a  partition  of  lands,  held  in  joint  tenancy  or  ten- 
ancy in  common,  are,  in  a  certain  sense,  special  in  their 
character.  At  the  common  law  there  was  no  remedy 
for  the  parties  in  such  cases.  The  statute  of  31  Henry 
VIII.  (chapter  i),  which  first  gave  them  a  remedy,  recited 
that  such  parties  could  not  make  any  severance  without 
"  their  mutual  assent  and  consents."  It  enacted  that 
such  tenants  should  thereafter  have  a  writ  out  of  the 
chancery  for  that  purpose.  Thus  suits  for  partition  be- 
come regular  actions  ;  and  if  the  practice  of  partitioning 
lands  in    this   form   had   been   continued  in  the  State  of 

26  Rice  V.  Smith,  14  Mass.  431. 

27  N.  y.  Code  Civ.  Pro.  §  340.  subd.  r. 

28  Doublcday  v.  Heath,  16  N.  Y.  80. 


132  THE    LAW    OF    PARTITION. 

New  York,  and  if  the  present  form  of  actions  was  of  that 
character,  one  could  not  see  how  they  could  be  consid- 
ered special  cases,  within  the  constitutional  provision. 
But  the  New  York  legislature  at  an  early  day  instituted  a 
summary  proceeding  by  petition,  which,  after  being  often 
revised  and  amended,  at  length  took  the  form  in  which  it 
is  now  found  in  the  Revised  Statutes.^^ 

Equity  will  entertain  jurisdiction  over  partition  of 
incorporeal  herditaments.  A  court  of  law  is  less  able  to 
administer  complete  justice  in  partition  of  the  former 
than  of  the  latter,  and  consequently  the  partition  of 
incorporeal  hereditaments  is  peculiarly  a  subject  of  equity 
jurisdiction.'"  Proceedings  for  partition  are  always  local 
proceedings,"  and  ought  not  to  include  a  prayer  for  the 
partition  of  lands  lying  in  different  counties.'^  A  court 
of  equity  has  jurisdiction  to  partition  personal  property  as 
well  as  real,  and  when  justice  requires  that  real  and  per- 
sonal estate  be  sold  together,  and  the  proceeds  divided, 
it  should  be  within  the  province  of  such  court  to  do  so  in 
one  action.''  It  is  well  settled  that  a  court  of  equity 
has  jurisdiction  over  an  action  brought  to  secure  a  parti- 
tion of  personal  property  between  tenants  in  common. 

A  court  of  admiralty  is  not  a  court  of  equity,  and 
does  not  exercise  jurisdiction  to  order  the  sale  of  any 
personal  property;  as,  for  instance,  a  vessel  owned  by  ten- 
ants in  common,  except  in  those  cases  where  the  oppos- 
ing interests  are  equal.'*    "A  court  of  equity,"  so  says  Jus- 

29  See  I  R-  S.  181 3,  50,  and  foot-note. 

30  5  Wait  Act.  &  D.  82  ;  Baxter  v.  Knowles,  i  Ves.  Sr.  494  ;  i 
R.  I.  233. 

31  Peabody  v.  Minot,  24  Pick.  333. 

32  Bonner,  Petitioner,  4  Mass.  122. 

33  Prentice  v.  Janssen,  7  Hun,  86. 

34  Andrews  v.  Betts,  8  Hun,  322. 


JURISDICTION.  133 

tice  E.  D.  Smith,  in  28  Barb.  290,  "is  incompetent  to  give 
relief  in  such  cases,  by  decreeing  the  partition  of  the  prop- 
erty, or  a  sale  thereof  where  partition  is  impracticable, 
and  a  division  of  the  proceeds."^*  The  case  of  Tinney  v. 
Stebbins  was  an  action  in  equity  for  the  partition  of  per- 
sonal property  held  by  the  parties  in  common.^* 

Notwithstanding  that  an  action  of  partition  is  an  equi- 
table action,  questions  of  fact  often  arise  that  must  be 
referred  to  a  jury,  or,  upon  consent  of  the  parties,  decided 
by  the  court  or  referee,  before  a  judgment  for  partition  or 
sale  can  be  regularly  entered.  And  where  issues  of  fact 
are  presented  by  the  pleadings,  a  jury  trial  is  a  matter  of 
right. 

The  Supreme  Court  at  a  Special  Term  has  authority 
to  direct  issues  of  fact  to  be  settled,  and  that  the  verdict 
of  the  jury  be  certified  to  the  Special  Term  for  further 
proceedings.  And  it  is  within  the  discretion  of  the 
court  whether  the  case  be  so  disposed  of  or  placed  upon 
the  circuit  calendar.  Such  actions  of  fact  as  are  pre- 
sented by  the  pleadings,  and  the  exercise  of  this  discre- 
tion are  not  reviewable  in  the  Court  of  Appeals.  The 
form  of  such  issues  is  discretionary,  and  the  order  of  the 
court  settling  such  issues  is  not  reviewable.  If  the  issues 
settled  are  imperfect  or  insufficient,  the  court,  on  trial  at 
the  circuit  has,  in  its  discretion,  the  right  to  amend 
and  to  submit  such  additional  issues  as  the  proof  may 
warrant."  The  court  of  equity  had  jurisdiction  prior  to 
the  Revised  Statutes,  and  independent  of  statute  regu- 
lations which  gave  the  Court  of  Chancery  the  same 
power,  upon  bill   filed  in   that   court,  to  decree   partition 

35  Tinney  v.  Stebbins.  28  Barb.  290;  4  Bibb,  441. 
'•^^'  See  15  Barb.  334;  22  Id.  517;  2  Lans.  211. 
37  Hewlett  V,  Wood,  62  N.  Y,  75,  ante. 


134  THE    LAW    OF    PARTITION, 

and  sale  of  lands,  as  were  given  to  the  common  law 
courts.^'  The  proceedings  under  the  Revised  Statutes  in 
the  law  courts  was  by  petition,  but  the  Code  repealed  the 
statutory  proceedings  by  petition,  and  substituted  an 
action  in  their  place.^^  The  fact  that  the  purpose  of  a 
feigned  issue  from  the  Court  of  Chancery  generally  was 
to  inform  the  conscience  of  the  court  upon  questions  of 
fact,  sent  to  be  tried  by  a  jury,  does  not  affect  the 
right  of  a  trial  by  jury  in  partition  cases.  In  partition 
suits,  the  verdict  of  a  jury  stands  upon  the  same  footing, 
the  proceedings  on  a  trial  are  liable  to  the  same  rules, 
and  subject  to  the  same  exceptions,  as  in  other  actions, 
and  will  only  be  reversed  for  legal  errors/"  A  verdict 
cannot  be  reversed,  on  error,  as  being  against  the  weight 
of  evidence  ;  but  it  will  be  reversed  for  a  wrong  direc- 
tion of  the  court  to  the  jury,  on  a  question  of  law  or  the 
legal  result  of  the  evidence.  When,  in  a  proceeding  in 
partition  under  the  statute,  there  is  evidence  of  a  posses- 
sion of  twenty  years  before  suit,  adverse  to  the  petitioner, 
the  jury  should  be  instructed  that,  if  they  find  such 
adverse  possession  proved  to  their  satisfaction,  they 
should  render  their  verdict  for  the  defendant/'  A  case 
is  not  necessarily  an  equity  case  because  on  the  Special 
Term  calendar,  and  if  there  be  an  issue  of  fact  in  the  case, 
the  court  may  send  it  to  the  jury  either  upon  a  settle- 
ment of  special  issues  or  on  the  pleadings." 

Courts  of  chancery  have   concurrent  jurisdiction   with 

38  Larkin  v.  Mann,  2  Paige,  27. 

39  Grogiian  v.  Livingston,  17  N,  Y.  225. 
*o  Clappz^.  Bromaghan,9  Cow.  530. 

*i  9  Cow.  530;  4  Paige,  178  ;  15  Wend.  11 1  ;    2  Johns.  Gas.  58 ; 
10  Johns.  164. 

^''  3  Hun,  736,  ante. 


JURISDICTION.  135 

courts  of  law  in  suits  for  partition  of  legal  estates."  To 
enable  a  court  to  make  a  decree  of  partition,  the  equitable 
rights  of  the  parties  should  appear  from  the  pleadings." 
The  court  will  not  authorize  the  guardian  of  an  infant  to 
join  in  a  sale,  except  on  the  report  of  a  master  that  such 
sale  is  necessary  and  proper  ;  and  the  guardian  must  give 
security  for  the  faithful  performance  of  his  trust  on  such 
sale,  and  to  bring  the  proceeds  of  the  infant's  share  into 
court,  or  to  invest  and  account  for  the  same,  as  the  court 
shall  direct.  It  is  a  sufficient  ground  to  authorize  a  sale 
of  an  infant's  property,  and  the  court  has  power  to  make 
such  authorization,  when  such  property  is  held  in  common 
with  adults,  and  that  the  value  of  the  estate  is  small,  in 
comparison  with  the  expenses  of  a  partition  suit,  to  which 
it  must  otherwise  be  subjected.^*  The  court  will  not  give 
a  purchaser  at  a  master's  sale  the  benefit  of  his  purchase 
where  he  neglects  to  comply  with  the  terms  of  sale  with- 
in a  reasonable  time,  if  a  resale  will  be  deemed  beneficial 
to  the  parties/"  And  a  decree  of  the  Court  of  Chancery 
finding  that  a  late  resident  of  another  State  died  intestate, 
with  respect  to  his  lands  in  this  State,  is  conclusive  upon 
all  questions  of  such  intestacy.*'  If  there  has  been  an 
irregularity  in  bringing  a  ward  into  court,  it  maybe  cured 
by  subsequent  amendment  under  order  of  the  court  hav- 
ing jurisdiction  of  the  parties  and  of  the  subject-matter.'* 
The  court  has  power  to  amend  irregular  proceedings." 

^  Jenkins  7^.  Van  Schaak,  3  Paige,  242  ;  distinguished  in  85  N. 
Y.  434.     See  2  Barb.  Ch.  405  ;  6  Paige,  293. 

^  Thayer  v.  Lane,  Walker  Ch.  200,  anie. 

4''  Matter  of  Congdon,  2  Paige,  566. 

■*6  Jackson  v.  Edwards,  7  Paige,  386.  See  22  Wend.  498 ;  8 
Barb.  618  ;  55  N.  Y.  7  ;  53  N.  Y.  298. 

47  Clemens  v.  Clemens,  37  N.  Y.  59. 

*8  Rogers 2/.  McLean,  34  N.  Y.   536,  an^e. 

4''  Knapp  V.  Ilungerford,  7  Hun.  588. 


136  THE    LAW    OF    PARTITION. 

Parties  to  an  action  are  bound  by  the  decree  of  the 
court,  even  though  it  may  be  erroneous,  providing  they 
raise  no  objection,  upon  the  trial  in  the  court,  to  those 
things  which  the  court  passed  upon  that  were  wrong, 
even  though  the  case  was  one  in  which  a  court  of  equity 
was  called  upon  to  exercise  its  powers/"  Persons  having 
an  interest  in  lands  sought  to  be  partitioned  must  be 
made  parties  to  the  action  ;  and  when  not  made  parties, 
and  have  no  opportunity  to  be  heard  in  the  action,  or  as 
to  the  decree,  the  court  cannot  bind  them  nor  afford  the 
relief  asked  to  the  other  parties  in  such  cases.  Courts  of 
chancery  will  refuse  to  make  a  decree  where,  by  reason 
of  the  absence  of  persons  interested  in  the  matter,  the 
decree  will  be  ineffectual,  or  would  injuriously  affect  the 
interest  of  the  absent  parties/^  In  an  orphans'  court  ref- 
erence should  be  made  to  the  value  and  amount  of  the 
land  rather  than  the  present  amount  of  the  income." 

If  a  bill,  besides  the  usual  prayer  for  general  relief, 
contains  a  prayer  for  specific  relief,  the  plaintiff  is  entitled 
to  other  specific  relief,  so  far  as  it  is  consistent  with  the 
case  before  the  court.  But  the  court  will  not  sustain  a 
bill  for  a  partition,  where  a  title  is  denied,  or  is  not  clear- 
ly established  ;  but  a  bill  will  be  retained,  to  give  the 
plaintiff  an  opportunity  to  establish  his  title  at  law.*^  If 
any  doubt  arises  on  a  bill  for  a  partition,  to  the  extent 
of  the  undivided  rights  and  interests  of  the  parties,  the 
usual  course  is,  to  direct  a  reference  to  a  master  to  inquire 
and  report  on  them,  as  the  estate  and  interest  of  the 
parties  must  be  ascertained  before  a  commission  is  award- 
so  Monarque  v.  Monarque,   19  Hun,  332. 

51  Barney  v.  Mayor  of  Baltimore,  6  Wall.  280 ;  18  Law.  Ed.  825. 

52  Young  7/.  Bickel,  i  S.  &  R.  467. 

53  Wilken  •J'.  Wilken,  i  Johns.  Ch.  iii. 


JURISDICTION.  137 

ed  to  make  partition.  But  where  the  title  is  suspicious, 
or  litigated,  it  must  first  be  established  at  law  before  a 
court  will  interfere/^  When  the  legal  title  is  disputed 
and  doubtful,  the  course  is  to  send  the  plaintiff  to  a  court 
of  law,  to  have  his  title  first  established.  But  where  the 
question  arises  upon  an  equitable  title,  set  up  by  the 
defendant,  the  court  must  decide  on  the  title/^  The 
plaintiff  has  no  right  to  impeach  the  deed  of  the  defendant, 
for  proceedings  in  partition  are  not  appropriate  for  a 
litigation  between  the  parties  in  respect  to  their  title,  and 
the  court  should  not  allow  the  equitable  proceedings  of 
partition  to  be  used  for  such  a  purpose.^*  Part-owners  or 
tenants  in  common  of  real  estate,  in  which  partition  is 
asked  in  equity,  have  an  interest  in  the  subject-matter  of 
the  suit,  and  when  the  relief  is  so  intimately  connected 
with  that  of  the  co-tenants,  that  if  these  cannot  be  sub- 
jected to  the  jurisdiction  of  the  court,  the  court  must 
dismiss  the  bill."  Adverse  claims  to  real  property  cannot 
be  determined  in  an  action  for  partition.  The  court  has 
no  power  to  make  such  determination  in  such  an  action. 
The  title  of  the  parties  should  first  be  established  by  the 
proper  action  for  that  purpose,  before  proceedings  for 
partition  can  be  had.^' 

A  judgment  in  partition  under  the  statute,  where 
part  of  the  premises  belongs  to  owners  unknown,  is  not 
valid,  unless  it  appear  on  the  face  of  the  record  that  the 
affidavit  required  by   the    statute   that  the    petitioner    or 

^  Phelps  V.  Green,  3  Johns.  Ch.  302. 
^•*  Coxe  V.  Smith,  4  Johns.  Ch.  271. 

^  Doe  z/.  Carpenter,  18  How.   U.S.   297;  15  Law.  Ed.  389. 
57  Barney  v.  Mayor  of  Baltimore,  6  Wall.  280. 
5^  Van  Schuyver  v.  Mulford,  59  N.  Y.  426.    See  5  Den.  385  ;  ig 
Wend.   367  ;  2  Paige,  387  ;  3  Barb.  Ch.  608. 


138  THE    LAW    OF    PARTITION. 

plaintiff  in  partition  is  ignorant  of  the  names,  rights  or 
titles  of  such  owners,  was  duly  presented  to  the  court,  and 
that  the  notice  also  required  in  such  cases  was  duly  pub- 
lished. The  affidavit  not  being  in  accordance  with  the 
statute,  the  court  lacks  jurisdiction  in  the  premises.^'  The 
court  may  affirm  any  part  and  reverse  any  part  of  the 
judgment  of  the  court  below  on  appeal/" 

59  Denning  ■?'.   Corwin,   11  Wend.    647.      See    21    Wend.    55; 

17  Id.  488. 

60  8  Johns.  558. 


CHAPTER  X. 

PARTITION   WHERE   DEVISE   HAS   BEEN   MADE. 

The  division  of  real  estate  and  personal  property  is 
sometimes  governed  by  a  will  which  may  perhaps  sepa- 
rate and  divide  the  estate  in  respect  to  the  shares  allotted 
to  each  of  the  co-tenants  or  devisees,  and  give  to  each, 
his  or  her  respective  share.  For  instance,  A  might  be 
the  owner  of  land  which  was  so  situated  that  it  could 
be  easily  parceled  among  his  children,  or  those  to 
whom  he  desired  to  leave  the  same  :  A  might  make  a 
will  wherein  he  allotted  to  each  that  tract  or  portion  of 
the  land,  setting  forth  the  metes  and  bounds,  or  accurately 
describing  each  particular  parcel,  so  that  a  partition 
would  not  be  necessary,  and  could  not  be  had,  as  the 
property  would  have  already  been  partitioned  by  the 
devise  of  A.  But,  on  the  other  hand,  A  might  make  his 
will  wherein  he  directs  that  his  property,  the  real  estate 
especially,  shall  pass  to  certain  heirs  or  individuals  ;  but 
not  saying  what  particular  parcel  shall  pass  to  any  par- 
ticular heir,  although  they  may  not  all  "  share  and  share 
alike."  In  such  a  case,  if  the  co-tenants  could  not  agree 
as  to  how  the  land  should  be  disposed  of,  or  how  it  should 
be  divided  among  them,  then  a  partition  must  necessarily 
be  had,  or  else  a  sale  of  the  premises  under  the  rules  and 

[139] 


I40  THE    LAW    OF    PARTITION. 

reg-ulations  of  the  proper  court  having  jurisdiction.  But 
if  A,  in  the  making  of  his  will,  should  direct  that  trustees 
or  appraisers  be  appointed,  or,  perhaps,  appoint  them  by 
his  will,  and  that  such  appraisers  or  trustees  shall  divide 
and  parcel  off  the  lands  among  the  co-tenants  or  devisees, 
then  a  partition  would  be  unnecessary,  as  the  testator 
has  already  by  the  provisions  of  his  will  so  regulated  the 
matter  that  litigation  is  unnecessary  between  the  co- 
tenants,  A  might,  on  the  other  hand,  direct  that  his 
executor  have  power  to  sell,  or,  perhaps,  that  his  executor 
should  sell  within  a  certain  period  of  time  named  in  the 
will,  in  which  case  it  would  be  unnecessary,  unwise  and 
improper  for  the  co-tenants  to  attempt  to  partition  the 
land,  as  the  power  of  sale  lies  with  the  executor,  and  can- 
not by  an  act  of  the  co-tenants  be  taken  from  him  so 
long  as  the  will  is  valid.  In  partition  cases,  courts  have 
heretofore  had  to  construe  wills,  or  clauses  in  wills,  be- 
cause often  the  main  portion,  or  at  any  rate  a  part  of  the 
will,  might  be  invalid  and  void,  and  yet  the  remaining 
portion  of  the  will  might  be  legal  and  carry  out  the  intent 
of  the  testator.  That  portion  of  the  will  which  purports 
to  convey  property,  either  real  or  personal,  or  both, 
might  perhaps  be  construed  by  the  court  to  be  invalid, 
would  certainly  affeci;  the  division  of  the  property,  whether 
it  be  by  an  actual  partition  or  by  a  sale,  and  then  a  divi- 
sion of  the  proceeds.  For  instance,  a  will  might  be  made 
conveying  property  to  different  individuals,  and  then 
entailing  that  portion  conveyed  to  some  certain  indivi- 
dual so  as  to  make  the  conveyance  void  under  the  laws 
of  the  United  States,  or  of  any  State,  yet  leaving  all  the 
other  devises  of  property  in  the  will  legal,  then  the  court 
must  construe  the  rights  of  those  parties  interested  in  the 
property,  as  it  is  set  forth  by  the  will,  and  especially  that 


DEVISE.  141 

part  of  the  will,  where  the  devise  is  void,  or  claimed  to  be 
void.  Section  1537  of  the  New  York  Code  of  Civil  Pro- 
cedure, ^  provides,  that  a  person  claiming  to  be  entitled, 
as  co-tenant,  by  reason  of  his  or  her  being  an  heir  of  a 
person  who  died,  holding  and  possessing  real  estate,  may- 
maintain  an  action  for  the  partition  thereof,  whether  he 
is  in  or  out  of  possession,  notwithstanding  the  devise 
made  of  such  property  to  another  by  the  testator  who  is 
in  posession,  providing  that  the  devise  be  void,  and  in 
such  a  case  must  allege  and  establish  that  the  so-called 
devise  in  the  will  transferring  the  property  to  the  one  in 
possession  is  void. 

The  court,  at  General  Term,  in  New  York  State, 
passing  upon  questions  such  as  we  have  discussed,  said  : 
"  In  this  case,  the  plaintiffs  claiming  the  land  by  descent  as 
heirs  at  law  commenced  this  action  for  a  partition.  They 
alleged  in  the  complaint  an  apparent  devise  by  their 
father  by  will,  wiiich  was  void,  and  also  a  adjudication 
upon  the  will  declaring  it  to  be  so.  The  paragraphs  con- 
taining these  statements  were,  on  motion,  stricken  out  as 
irrelevant.  This  was  erroneous,  and,  it  seems,  would 
not  have  been  done  had  there  not  existed  some  mis- 
apprehension of  the  nature  of  the  action.  The  statute 
(3  R.  S.  6  ed.  p.  60,  §  22)  provides  that  any  heir  or 
heirs  claiming  lands  from  an  ancestor  may  prosecute 
for  partition  thereof,  notwithstanding  any  apparent  devise 

a  A  person  claiming  to  be  entitled,  as  a  joint  tenant  or  a  ten- 
ant in  common,  by  reason  of  his  being  an  heir  of  a  person  who 
died,  holding  and  in  possession  of  real  property,  may  maintain  an 
action  for  the  partition  thereof,  whether  he  is  in  or  out  of  posses- 
sion, notwithstanding  an  apparent  devise  thereof  to  another  by 
the  decedent,  and  possession  under  such  a  devise.  But  in  such 
an  action,  the  plaintiff  must  allege  and  establish  that  the  appa- 
rent devise  is  void.     New  York  Code  of  Civ.  Pro.  ^  1 537. 


142  THE    LAW    OF    PARTITION. 

by  ancestor  or  any  possession  held  in  under  such  devise, 
provided  that  such  heir  or  heirs  shall  allege  and  establish 
in  the  same  suit,  action  or  proceeding  that  such  apparent 
devise  is  void.  The  statement  of  this  provision  demon- 
strates the  error  of  the  order  made.  It  was  essential  to 
the  plaintiff's  case  that  they  should  aver  the  existence 
of  the  devise  and  its  invalidity,  and  they  did  so.  The  de- 
fendant McCloskey  was  not  called  upon  to  answer  that 
part  of  the  complaint,  unless  the  plaintiff's  title  as  heirs 
at  law  in  fact  was  disputed.  His  part  of  the  case  is  sepa- 
rate and  independent,  and  relates  exclusively  to  the  valid- 
ity of  the  deed  under  which  he  claims."^ 

In  an  action  for  the  partition  of  lands,  where  the  com- 
plaint failed  to  state  in  explicit  terms  that  the  plaintiffs, 
who  claimed  title  to  the  lands  as  heirs  at  law  of  a  dece- 
dent in  possession,  were  themselves  in  possession  of  their 
shares,  or  held  the  premises  as  joint  tenants  or  tenants  in 
common,  the  court  held,  that  the  allegations  of  this  com- 
plaint setting  forth  such  alleged  facts  were  insufficient,  as 
the  complaint  should  conform,  in  its  statements,  to  what 
was  required  to  be  set  forth  in  a  petition  for  partition  under 
the  Revised  Statutes  ;  that  the  rights  and  titles  of  the 
plaintiff  should  be  fully  set  forth.  Where  one  seeks  to  avail 
himself  of  a  remedial  statute  he  should,  in  pleading,  bring 
himself  within  its  terms  by  clear,  distinct,  affirmative 
allegations.  To  justify  an  action  for  partition  of  lands, 
the  same  must  be  held,  and  be  in  the  possession  of  sev- 
eral persons,  as  joint  tenants,  or  tenants  in  common. 
The  revisers  did  not  intend  to  relax  the  statutory  com- 
mon law  rule,  which  they  regarded  as  established  ;  and 
they  were  of  the  opinion,   undoubtedly,    that   actual    or 

1  Voessing  v.  Voessing,  12  Hun,  678, 


DEVISE.  143 

constructive  possession  was  necessary.  The  plaintiff  in 
his  action  must  comply  with  the  old  statutory  rule,  that 
his  complaint  must  show  possession,  exceptin<^  as  set 
forth  in  section  1537  of  the  New  York  Code  of  Civil  Pro- 
cedure, and  that  section  assumes  that  if  the  apparent 
devise  therein  referred  to  is  void,  that  the  plaintiff  then  is 
in  possession,  and,  if  not  in  actual  he  is  in  constructive  pos- 
session. So  that  in  bringing  an  action  under  that  section 
of  the  Code,  all  the  facts,  necessary  to  show  the  proper 
possession  on  the  part  of  the  plaintiff,  must  be  pleaded, 
otherwise  the  pleadings  do  not  show  that  the  court  has 
jurisdiction  of  the  action.  The  averments  above  referred 
to,  do  not  explicitly  state  that  the  plaintiffs  are  in  posses- 
sion of  their  shares,  or  that  they  hold  the  premises  as 
joint  tenants,  or  tenants  in  common,  with  others.  And 
for  those  reasons  the  court  held,  that  the  complaint  was 
insufficient.' 

The  action,  in  the  case  of  Stewart  v.  Munroe,  was  not 
brought  under  chapter  238,  of  the  Laws  of  New  York, 
1853,  "relative  to  disputed  wills."  By  section  2  of  that 
act,  the  heir,  claiming  lands  by  descent  from  an  ancestor, 
who  died  holding  and  being  in  possession  of  the  same, 
whether  the  heir  be  in  possession  or  not,  may  prose- 
cute for  the  partition  of  the  lands  thereof,  notwith- 
standing any  apparent  devise  by  such  ancestor.  The 
complaint  in  this  case  contained  no  allusion  to  the  fact 
that  Mr.  Stewart  left  a  will,  yet  it  is  well  known  that 
Mr.  Stewart  did  not  die  intestate.^  And  from  the  fact 
that    Mr.    Stewart  did  die  testate,  this    case  becomes  of 

2  Stewart  v.  Munroe,  56  How.  193  ;  citing  9  Cow.  530  ;  66  N. 
Y.  37  ;  52  How.  62  ;  Moak  Van  Santv.  PI.  235  ;  2  Blacks.  Com. 
199  ;  4  Kent  Com.  393  ;  46  N.  Y.  182  ;  2  Barb.  Ch.  398  ;  3  Paige, 
245  ;   14  N.  Y.  235  ;  5  Wait  Pr.  61,  63. 

3  Bailey  v.  Hilton,  14  Hun,  31. 


144  THE    LAW    OF    PARTITION. 

interest,    when  carefully  read  under  the   subject   now  in 
discussion. 

An  action  for  partition  of  lands,  under  the  act  of  1853, 
can  only  be  sustained,  when  it  is  shown  that  the  apparent 
devise,  to  which  objection  is  taken,  is  void.  It  is,  however, 
only  when  the  whole  will,  or  entire  devise  of  real  estate, 
is  attacked  for  invalidity,  that  a  suit  or  proceeding  can  be 
instituted  under  the  act  above  referred  to.    Although  an 
heir  at  law  of  the  testator,  who  takes  nothing  under  his 
will,  cannot,  when  objection   is  made,  maintain  an  action 
for  its  construction,  yet  where,  in  such  an  action,  all  the 
parties  interested  under  the  will,  and  in  the  estate,  agree 
upon  the  facts,  and    ask   for   an  adjudication,  it  may  be 
granted.*      In    an    action    for   partition    brought    by   an 
heir  under  the  provisions  of  the  act  of  1853   [chap.  238], 
relative  to  disputed  wills,  the  Supreme  Court  at  Special 
Term  has  authority  to  direct  issues  of  fact  to  be  settled 
and  that  the  verdict  of  the  jury  thereon  be  certified  to  the 
Special  Term  for  further  proceedings.     If  the   issues  set- 
tled are  imperfect  or  insufficient,  the  court,  on  trial  at  the 
circuit,    has,    in  its  discretion,    the  right  to  amend  and  to 
submit  such  additional  issues  as  the  proof  may  warrant  ; 
and  the  verdict  of  the  jury   is    conclusive  and  cannot  be 
disregarded.^   Persons,  not  experts,  after  testifying  to  facts 
and  incidents,  in  relation  to  a  testator,  tending  to  show 
soundness  of  mind,  or   the  contrary,  may  testify  to  the 
impression  produced  upon  them  thereby,  and  also  whether 
the   acts   and    declarations    testified   to    seem    to   them 
rational  or  irrational;  but  they  may  not  as  to  the  general 

4  McKeon  v.   McKeon,  57  How.  349.      See  63  N.  Y.  221 ;    55 
How.  301,  210. 

5  Hewlett  V.  Wood,  62  N.  Y.  75,  afite  ;  3  Hun,  736  ;  9  Cow.  530. 


DEVISE.  145 

soundness  or  unsoundness  of  mind  of  the  testator  ;    or  as 
to  his  capacity  to  execute  a  will." 

In  1879,  the  General  Term  of  the  Second  Department 
decided  a  case  of  considerable  interest  at  this  point.  The 
statement  of  facts  as  set  forth  in  the  head-notes,  in  brief, 
are  these  :  In  1864,  one  Monarque  died,  leaving  a  will,  by 
which  he  devised  certain  real  estate  to  his  wife  for  life, 
and,  on  her  death,  to  his  four  children,  for  their  lives,  and 
after  their  death  to  their  respective  children,  in  fee.  In 
1876  one  of  the  childrenof  the  testator  brought  an  action  in 
the  Supreme  Court  for  the  construction  of  the  will,  alleging 
certain  portions  thereof  to  be  invalid.  The  widow,  who 
was  also  the  executrix,  the  other  three  children,  and  all 
the  grandchildren,  were  parties,  the  adults  appearing  by 
attorneys  and  the  infants  by  guardians  ad  litem,  duly 
appointed.  In  this  action  it  was  adjudged  that  certain 
portions  of  the  will  were  invalid,  and  that  the  fee  vested 
in  the  three  children  of  the  testator,  subject  to  the  life 
estate  of  the  widow,  and  that  the  grandchildren  had  no 
interest  therein.  Subsequently  the  action,  which  was 
before  the  General  Term  as  above  referred  to,  was  brought 
to  partition  the  real  estate,  the  widow  and  children  being 
made  parties,  but  not  the  grandchildren.  Upon  a  motion 
to  compel  the  purchasers  who  had  bought  at  a  sale  under 
a  decree  therein,  to  complete  their  purchase,  the  General 
Term  held  that  the  Supreme  Court  had  jurisdiction  of 
the  action  brought  to  procure  a  construction  of  the  will  ; 
that  as  no  objection  was  made  to  its  hearing  and  decid- 
ing the  same,  the  parties  thereto,  including  the  infant 
grandchild,  were  bound  by   the    decree,    even    though    it 

«  Hewlett  z/.  Wood,  55  N.  Y.  634.      See  34  N.  Y.   190;    36  Id. 
276;  42  Id.  270;   17  Id.  340. 
10 


146  THE    LAW    OF    PARTITION. 

was  erroneous,  and  whether  the  case  was  one  in  which  a 
court  of  equity  was  called  on  to  exercise  its  powers  or 
not.'  Under  chapter  238  of  the  Laws  of  1853,  above 
referred  to,  an  heir-at-law  may  maintain  an  action  for  the 
partition  of  lands,  whereof  his  ancestor  died  seized,  and  to 
procure  a  judgment  declaring  invalid  and  void  a  devise 
contained  in  his  will,  under  and  by  virtue  of  which  his 
widow  is  then  in  the  possession  and  occupation  of  the 
lands,  claiming  title  thereto.  The  act  of  1853  cannot  be 
held  unconstitutional  on  the  ground  that  it  allows  the 
question  of  title  to  be  tried  in  an  action  for  partition,  as  a 
party  thereto  may,  if  he  so  desires,  have  the  issues  arising 
therein  settled  and  tried  by  a  jury  on  making  a  timely 
demand  therefor.* 

An  heir-at-law  or  next  of  kin  claiming  in  hostility  to  a 
will,  cannot  maintain  an  action  to  obtain  a  construction 
thereof.  The  jurisdiction  of  courts  of  equity  to  pass  upon 
the  interpretation  of  a  will  is  incidental  to  that  over 
trusts.  They  do  not  take  jurisdiction  of  actions  brought 
solely  for  that  purpose,  or  where  legal  rights  only  are  in 
controversy.  A  party  who  has  an  interest  in  a  trust 
created  by  the  will,  if  valid,  cannot  allege  the  trust  for 
the  purpose  of  giving  the  court  jurisdiction  while  denying 
the  legal  existence  of  the  trust  and  claiming  legal  rights 
inconsistent  therewith  ;  to  entitle  him  to  the  action  and 
judgment  of  the  court,  either  in  execution  of  the  trust  or 
in  the  construction  of  the  will  and  the  adjustment  of  the 
rights  of  the  parties  under  it,  he   must   elect  to    take  in 

■^  Monarque  v.  Monarque,  19  Hun,  332,  ante.  See  (i2>  N-  Y. 
460;  6  Robt.  219  ;  2  N.  Y.  498  ;  10  Paige,  193. 

■3  Ward  z/.  Ward,  23  Hun,  431  ;  62  N.  Y.  78  ;  i  Hun,  478  ;  13 
Hun,  306;  II  Abb.  Pr.    N.  S.  104;  47  Barb.  263;  58  N.  Y.   335. 


DEVISE. 


147 


subordination  to  the  will  and  under  the  trust  as  created.' 
The  heir  at  law  of  those  in  whose  favor  devises  and 
bequests  are  made  in  a  will,  cannot  maintain  an  action  in 
equity  for  its  construction  ;  nor  can  those  who  claim  in 
opposition  to  the  dispositions  of  the  will.  Their  remedy- 
is  legal,  not  equitable. 

Thus,  where  the  testatrix  and  her  two  grandchildren 
were  lost  in  a  shipwreck,  and  it  appearing  that  a  wave 
bore  the  testatrix  from  the  saloon  in  which  the  children 
were  with  her,  and  she  was  not  afterwards  seen  alive, 
the  grandchildren  were  seen  alive  a  few  minutes  after- 
wards, when  the  saloon  and  its  inmates  were  carried 
away  :  it  was  held,  that  while  from  such  facts  it  cannot 
be  said  to  be  absolutely  certain  that  the  testatrix  died 
first,  yet  under  the  case  of  Pell  v.  Ball,  i  Cheves  Eq.  (S. 
C.)  99,  the  evidence  might  justify  such  conclusion.  But 
the  burden  of  proving  a  survivorship  rests  upon  the  parties 
who  claim  through  it."  If  a  testator  leaves  one  half  of 
his  estate  to  his  widow,  the  other  half  to  his  children,  the 
widow  and  some  of  the  children  may  unite  in  proceedings 
for  partition  against  the  others."  Where  a  will  directs 
an  appraisement  of  the  land,  and  a  partition  of  the  land 
among  the  heirs,  according  to  such  appraisement  without 
taking  any  legal  proceedings,  the  heirs  will  be  entitled 
to  a  partition,  upon  failure  of  the  executors  to  cause  a 
partition  to  be  made  pursuant  to  the  will.  The  executors 
and  devisees  of  a  deceased  tenant  in  common,  not  seeking 
partition  among  themselves,  may  unite  in  a  bill  in  equity, 

9  Chipman  v.  Montgomery,  63  N.  Y.  221  ;  26  Barb.  68  ;  i  Cox, 
392  ;  2  Bradf.  90 ;  5  Mad.  Ch.  351  ;  2  Beav.  215  ;  10  Paige,  194;  33 
N.  Y.  602  ;  8  Id.  67  ;  52  N.  Y.  12 ;  2S  Wend.  124. 

10  Stinde  z/.  Ridgway,  55  How.  Pr.  301. 

11  Chouteau  v.  Paul,  3  Mo.  260. 


148  THE    LAW    OF    PARTITION. 

to  have  their  share  of  the  land  set  ofif  from  that  of  the  co- 
tenant."  And,  if  a  son  be  devisee  of  an  undivided  half 
of  his  father's  land,  the  widow,  who  is  devisee  of  a  life 
estate  of  the  son's  portion,  is  entitled  to  partition."  Where 
there  is  a  devise  of  land  subject  to  a  condition,  and  the 
devisee  having  entered  fails  to  perform  the  condition,  a 
person  who  has  a  right  to  an  undivided  interest  in  the 
land,  as  co-tenant  in  common  with  the  devisee,  by  reason 
of  the  breach  of  the  condition,  cansot  have  partition, 
without  first  establishing  his  title  by  action.'^  The  heirs 
as  well  as  the  executors  must  be  made  parties  to  a  bill  for 
partition." 

Where  an  estate  is  vested  under  a  will  in  a  trustee, 
upon  several  independent  trusts,  one  or  more  of  which  are 
valid  and  the  others  void,  the  latter  will  be  rejected  and 
the  estate  of  the  trustee  will  be  upheld  to  the  extent 
necessary  to  enable  him  to  execute  the  former."  If  some 
of  the  provisions  of  a  will  are  valid  and  others  void,  it 
must  be  sustained  so  far  as  is  necessary  to  give  effect  to 
those  provisions  that  are  valid."' 

Where  a  will  gives  to  the  executor  the  power  of  sale, 
and  the  will  is  assumed  to  be  valid  by  the  court,  and  has 
been  duly  admitted  to  probate,  that  power  cannot  be 
disputed,  and  the  executor  in  making  the  sale  can  give 
as  good  a  title  as  his  testator  had  at  the  time  of  his 
decease  ;  and  it  is  a  presumption  that  the  executors  sign- 

12  Pagez-.  Webster,  8  Mich.  263. 

13  Ackley  7/.  Dygert,  33  Barb.  176, 

1*  O'Dougherty  v.  Aldrich,  5  Den.   385. 

15  Chalon  v.  Walker,    7  La.  Ann.  477,  ante. 

16  Van  Schuyver  v.  Mulford,  59  N.  Y.  426,  ante  ;    47    Id.    389  ; 
41  Id.  328. 

17  Post  7/.  Hover,  33  N.  Y.  593.     See    13   Wend.   178;  9   Paige, 
107  ;  35  N.  Y.  340 ;  36  Id.  543  ;  41  Id.  321. 


PARTIES. 


149 


ing  the  deed  were  all  of  the  acting  executors,  and  that 
they  by  signing  such  deed  conveyed  title.  This  presump- 
tion remains  until  it  is  removed  by  proof,  and  a  pur- 
chaser at  a  judicial  sale  cannot  institute  proceedings 
upon  a  perfect  record  of  title,  as  the  court  must  take 
estates  as  they  find  them,  and  the  disposition  of  estates 
in  general  is  no  more  or  less  than  a  disposition  of  the 
interest  and  title  which  the  deceased  had  at  the  time  of 
his  death. 

Note.— Questions  of  the  kind  discussed  in  this  chapter  have 
often  been  before  the  courts  collaterally  or  otherwise,  where  the 
decision  of  the  court  has  been  based  upon  circumstances  gov- 
erning the  case,  and  the  following  will  be  found  of  interest  to 
the  reader.  22  Hun,  488  ;  11  Abb.  N.  C.  309  ;  4  Edmunds,  504  ; 
47  Barb.  305. 


CHAPTER   XI. 


THE    COMPLAINT. 


The  first  pleading,  in  partition  cases,  is  the  com- 
plaint/ In  New  York  State,  and,  in  fact,  in  nearly  all 
States,  where  the  Code  practice  is  in  use,  this  first  plead- 
ing is  termed  the  complaint.  But  in  some  States  it  is 
termed  the  writ,  in  others,  the  petition,  and  in  all,  to  a 
greater  or  a  less  extent,  the  bill.  It  should  contain 
the  title  of  the  action,  and  the  name  of  the  court  and  the 
county  or  district  in  which  the  action  is  held.  Care 
should  be  taken  as  to  the  venue,  as  in  many  instances, 
an  improper  venue  may  oust  the  court  of  its  jurisdiction 
of  the  subject-matter  of  the  action.  The  complaint 
should  contain  a  plain  and  concise  statement  of  all  the 
facts  necessary  to  explain  fully  the  cause  of  action  of  the 
plaintiff,  and  the  right  of  each  of  the  parties  ;  and  it 
should  close  with  a  demand  for  judgment  of  partition,  or 
for  a  judgment  for  the  sale  of  the  premises,  providing  a 
partition  cannot  be  had.  and  a  division  of  the  proceeds, 
after  the  payment  of  the  necessary  costs  and  expenses 
that  are  incurred,  by  reason  of  the  action,  and  for  such 
other,  further  or  different  relief,  as  the  plaintiff  may 
desire,  which  may  not  be  inconsistent  with  the  facts  set 
forth  in  the  complaint,  and   would  not   be  a  mis-joinder 

1  N.  Y.  Code  Civ.  Pro.  |  4/8. 

[150] 


THE    COMPLAINT.  I5I 

of  actions,  or  asking-  for  a  relief  that  is  in  no  way 
germane  to  the  questions  to  be  placed  before  the  court, 
or  inconsistent  with  any  of  the  matters  that  may  be 
usually  litigated  in  partition  cases.  The  general  rules 
governing  a  complaint,  as  set  forth  by  the  New  York 
Code  in  all  actions,  should  be  complied  with  in  partition 
cases.  These  rules  may  be  found  printed  in  the  Code  of 
Civil  Procedure,  at  section  481,  and  are  of  that  concise- 
ness, and  so  plain  and  simple,  that  they  cannot  easily  be 
misunderstood,  and  yet  should  be  carefully  read  and  fully 
followed.-  Xo  better  guide  need  be  had  in  drafting 
the  complaint,  in  a  partition  case,  than  the  rules  laid 
down  in  the  New  York  Revised  Statutes  (vol.  3,  p. 
584,  6  ed.  §  8),  which  states  that  :  "  The  petition  for 
a  partition  or  sale  of  any  such  real  estate  shall  contain 
the  following  matters  :  first,  it  shall  particularly  describe 
the  premises  sought  to  be  divided  or  sold  ;  second, 
it  shall  set  forth  the  rights  and  titles  of  all  persons 
interested  therein,  so  far  as  the  same  are  known  to 
the  petitioner,  including  the  interest  of  any  tenant  for 
years,  for  life,  by  the  courtesy  or  in  dower,  and  the  per- 
sons entitled  to  the  reversion,  remainder  or  inheritance 
after  the  termination  of  any  particular  estate  therein,  or 
every  person  who,  by  any  contingency  contained  in  any 
devise,  grant  or  otherwise,  may  be  or  become  entitled  to 
any  beneficial  interest  in  the  premises  ;  and,  third,  it  shall 
be  verified  by  afifidavit.''  Section  9  provides  that  every 
person    having  any  interest  as  aforesaid,  whether  in    pos- 

2  9  How.  198 ;  10  How.  31  ;  1 5  Abb.  N.  S.  24 ;  45  N.  Y.  166 ;  3 
Daly,  430;  59  N.  Y.  156;  10  N.  Y.  Leg.  Obs.  281,  See  Wait's  Code, 
note  to  g  142  ;  10  Hun,  299;  75  N.  Y.  i ;  66  N,  Y.  214;  3  Civ.  Pro. 
202;  83  N.  Y.  14;  7  Civ.  Pro.  210. 

2  7  Paige  387  ;  28  Barb.  342 ;  Hopk.  501. 


152  THE    LAW    OF    PARTITION. 

session  or  otherwise,  and  every  person  entitled  to  dower 
in  such  premises,  if  the  same  has  not  been  admeasured, 
may  be  made  party  to  such  petition/  Section  10  further 
provides,  in  case  any  one  or  more  of  such  parties,  or  the 
share  or  quantity  of  interest  of  any  of  the  parties,  be 
unknown  to  the  petitioner,  or  be  uncertain  or  contingent, 
or  the  ownership  of  the  inheritance  shall  depend  upon  an 
executory  devise,  or  the  remainder  shall  be  a  contingent 
remainder,  so  that  such  parties  cannot  be  named,  the 
same  shall  be  set  forth  in  such  petition.'^ 

The  common-law  writ  of  partition  is  very  ancient,  as 
is,  also,  the  jurisdiction  of  courts  of  equity  in  cases  of  par- 
tition. It  can  be  traced  back  as  early  as  the  reign  of 
Queen  Elizabeth,  which  reign,  though  filled  with  much 
evil,  brought  forth  some  good,  by  changing  and  amend- 
ing some  of  the  arbitrary  statutes  and  laws  then  in  force, 
which  tied  up  and  curtailed  individual  rights.  The  birth 
of  partition  was  mainly  for  the  purpose  of  settling  differ- 
ences between  coparceners,  and  not  allowing  a  division 
of  property,  or  of  the  proceeds  of  property  between  co- 
tenants  ;  that  is  an  after-thought  of  the  better  condition 
of  law  and  of  mankind.  And,  as  far  as  is  now  known,  no 
writ  of  partition  would  lie,  except  between  coparceners, 
until  the  reign  of  Henry  VIII.,  one  of  the  notorious  bad 
kings  of  England."^ 

In  Massachusetts  and  Maine,  the  writ  of  partition  at 
common  law  is  not  only  given,  but  partition  may  be 
effected  by  petition  without  writ.'  In  Massachusetts, 
the  petition    may  be    addressed  to  the  Court  of  Common 

4  2  N.  Y.  250;  1  Barb.  506. 

5  17  N.  Y.  217. 

6  Story  Eq.  tit.  "  Part." 

7  Mussey  v.  Sandborn,  15  Mass.  155  ;  Act  of  Maine,  1821. 


THE    COMPLAINT.  I  53 

Pleas,  or  the  Supreme  Judicial  Court.  The  Probate 
Court  may  also  award  partition  as  between  heirs  and 
devisees  upon  proper  petition.  '  In  Connecticut,  New 
Jersey,  Ohio,  Illinois  and  Georgia  partition  of  lands  in 
joint  tenancy,  tenancy  in  common  or  coparcenary,  may 
be  effected  by  petition  to  the  courts  of  law,  and  in 
Connecticut,  the  Court  of  Probate  has  jurisdiction  to 
order  partition  in  the  case  of  minors,  and  to  order  a  sale 
in  the  case  of  minors  for  reasonable  cause.  In  England, 
the  proceedings  are  in  chancery,  and  the  jurisdiction  of 
chancery  is  well  established  by  along  series  of  decisions." 
In  some  of  the  States  the  writ  of  partition,  modified  and 
regulated  by  statute,  is  used  either  wholly  or  concur- 
rently with  other  modes  of  partition.  In  other  States,  the 
proceeding  is  by  petition  to  the  proper  court,  or  by  appli- 
cation to  commissioners  specially  authorized;  and  where 
no  remedy  is  provided  by  statute,  or  the  remedy  at  law 
is  insufficient  or  imperfect,  relief  may  be  had  by  a  bill  in 
equity.  '"  It  has  been  a  much-discussed  question  what 
rights  a  plaintiff  must  show  to  entitle  him  to  maintain 
proceedings  for  partition.  The  Revised  Statutes  of  New 
York  provide  that  when  several  persons  "shall  hold  and 
be  in  possession  of  any  lands,  tenements  or  heredita- 
ments as  joint  tenants,  or  as  tenants  in  common,"  any 
one  or  more  of  them  being  of  full  age  may  apply  for  par- 
tition. The  language  of  that  provision,  which  has  now 
substantially  become  a  part  of  the  Code  of  New  York 
State,  has  been  judicially  construed  as  being  substan- 
tially the  provision  of  the  first  English  act  relative  to  par- 
tition  between    co-tenants     and    corresponds    with    the 

8  See  Mass.  Rev.  Stat.  1836,  part  3,  tit.  3,  c.  103. 

4  Kent  Com.  365.  10  Wait  Act.  &  D.  82. 


154  THE    LAW    OF    PARTITION. 

statutory  provisions  of  most  of  the  other  States.  In  sev- 
eral States,  it  is  expressly  provided  that  the  estate 
claimed  shall  be  in  possession,  and  not  in  remainder  or 
reversion.  If  any  special  meaning  is  to  be  understood 
by  the  words  "and  be  in  possession,"  in  the  New  York 
statute,  it  would  seem  to  indicate  an  estate  in  possession, 
as  distinguished  from  an  estate  in  remainder  or  in  rever 
sion."  Every  thing  that  is  required  by  the  law  to  be 
specially  proved  should  be  averred.  But  it  is  not  neces- 
sary to  aver  in  the  bill,  that  the  complainant  is  in  posses- 
sion of  the  premises,  as  that  fact  will  be  presumed  from 
the  allegation  that  the  parties  are  seized  in  common. ^^ 

The  judgment  in  an  action  for  partition  is  binding 
and  conclusive  upon  all  the  parties,  not  only  as  to  the 
matter  actually  determined,  but  as  to  every  other  matter 
which  the  parties  might  have  litigated  and  had  decided, 
as  incident  to  or  essentially  connected  with  the  subject- 
matter  of  the  litigation  within  the  purview  of  the  action, 
either  as  a  matter  of  claim  or  defense.  It  is  for  the  court 
to  determine  therein  whether  it  is  a  proper  case  for  a  par- 
tition or  sale,  and  if  it  errs,  the  error  can  only  be  cor- 
sected  on  appeal.  "  The  better  judgment  of  the  court 
in  some  cases  seems  to  be  that  possession  must  be 
averred.  And  where  the  complaint  fails  to  state  in  ex- 
plicit terms  that  the  plaintiffs,  who  claim  title  to  the 
lands  as  the  heirs  at  law  of  a  decedent  in  possession, 
were  themselves  in  possession  of  their  shares,  or  held  the 
premises  as  joint  tenants  or  tenants  in  common  with  oth- 
ers, such  complaint  was  insufficient,  as  it  should  conform, 

11  Bingham's  A.  &  D.  131. 

12  Jenkins  v.  Van   Schaack,  3  Paige,  242,  ante;  Dist.  85  N.  Y. 
434.     See  2  Barb.  Ch.  405  ;  6  Paige,  293. 

13  46  N.  Y.  182  ;  9  N.  Y.  502  ;  72  Id.  518  ;  58  Id.  176. 


THE   COMPLAINT.  I55 

in  its  statements,  to  what  is  required  to  be  set  forth  in  a 
petition  for  partition  under  the  Revised  Statutes,  which 
require  that  the  "rights  and  titles"  of  the  plaintiff 
should  be  set  forth.  "  The  estate  of  each  known  owner 
must  be  stated,  but  it  may  be  stated  that  certain  definite 
portions  belong  collectively  to  owners  who  are  unknown. 
An  averment  that  there  are  "  certain  unknown  owners," 
although  their  exact  interests  are  not  specified,  may  be 
.sufficient  to  authorize  the  subsequent  proceedings  as  to 
them.  *^  The  purchaser  at  a  partition  sale  cannot  refuse 
to  take  title  on  the  ground  that  the  pleadings  do  not 
correctly  or  sufficiently  state  the  interest  of  the  parties, 
nor  that  the  referee  did  not  append  searches  to  his  report, 
for  this  is  now  unnecessary  ;  nor  that  he  did  not  adver- 
rise  for  liens,  if  he  certified  that  no  liens  existed.  "  It  is 
the  duty  of  the  complainant  in  a  partition  suit  to  state  in 
his  bill  the  rights  and  interests  of  all  the  parties  in  the 
premises,  so  far  as  they  are  known  to  him,  according  to 
his  information  and  belief.  If  the  rights  of  the  defendants, 
as  between  themselves,  depend  upon  the  validity  of  a  will 
under  which  an  undivided  part  of  the  premises  is 
claimed,  or  where  the  ownership  of  an  undivided  share  of 
the  premises  is  contingent  or  doubtful  and  depends  upon 
the  construction  of  such  will,  it  is  proper  for  the  com- 
plainant to  state  in  his  bill  the  fact  of  the  making  of  the 
will  and  the  substance  thereof  so  far  as  it  is  necessary  to 
enable  the  court  to  understand  the  rights  of  the  parties. 
Whatever  a  complainant  is  bound  to  state  in  his  bill,  the 
defendant  may  be   required   to   admit    or   deny   by   his 


14  Steward  v.  Monroe,  56  How.  193,  ante. 

15  Hyatt  V.  Pugsley,  23  Barb.  285. 

16  Noble  V.  Cromwell,  3  Abb.  Ct.  App,  Dec.  382. 


156  THE    LAW    OF    PARTITION. 

answer  to  the  same.  ^'  The  word  "  seized,"  in  general, 
means  fee.  When  an  averment  in  the  complaint  states, 
that  the  party  named  is  seized  of  a  certain  portion  of  the 
premises,  the  courts  will  construe  that  language  to  mean 
that  he  has  that  portion  of  the  premises  in  fee.  ^' 

In  a  petition  for  partition,  under  the  statute,  it  is  not 
necessary  to  set  forth  the  rights  and  titles  of  the  several 
tenants,  at  large  ;  nor  is  it  necessary  to  allege  the  seizin 
of  the  ancestor  or  person  from  whom  the  parties  derive 
title  ;  but  it  is  sufficient  to  state,  in  general  terms,  that 
each  tenant  was  seized  of  his  part  or  share,  in  fee,  or  as 
the  case  may  be,  whether  such  seizin  be  acquired  by  de- 
scent or  purchase.^*  It  is  the  better  wisdom  to  state  dis- 
tinctly and  fully  the  rights,  titles,  interests,  liens,  claims 
or  demands  of  each  and  all  the  parties  concerned,  not- 
withstanding the  rule  laid  down  in  Bradshaw  v.  Callaghan. 
If  a  full  statement  is  made  of  all  the  interests  of  the 
respective  parties,  the  pleader  is  upon  the  safe  side  of  the 
practice.  The  facts  and  circumstances  in  one  case,  in 
brief,  are  as  follows  :  The  petition  of  the  plaintiffs,  after 
setting  forth  their  rights,  stated  that  F,  one  of  the 
defendants,  was  seized  in  fee  of  a  moiety,  subject  to  two 
mortgages,  to  A  and  C,  and  to  P;  the  other  defendants, 
F  and  P,  pleaded  in  bar,  that  before  the  presenting  of  the 
petition  of  the  plaintiffs,  A  and  C  assigned  their  mort- 
gage to  P.  A  and  C  pleaded  noii  tenejtt  insimiil ;  the 
plaintiff  replied,  confessing  all  the  facts  in  the  pleas,  and 
prayed  judgment  of  partition  ;  and  then  gave  notice  of 
motion  for  judgment  on  the  pleadings.     The  defendants 

17  Cortlandt  v.  Beekman,  6  Paige,  492. 

18  Lucet  V.  Beekman.  2  Caines,  385. 

19  Bradshawjy.  Callaghan,  8  Johns.  557.      See  9  Cow.  530 ;    15 
Johns.  321  ;  2  N.  Y.  Leg.  Obs.  408. 


THE    COMPLAINT. 


157 


afterwards  put  in  general  demurrers  to  the  replication  ; 
but  the  court,  upon  the  pleadings,  gave  judgment  as 
prayed  for  by  the  plaintiffs.^"  It  is  doubtful,  whether  the 
same  rule  would  now  be  applied  by  the  court.  This  was 
in  1807. 

A  bill  in  equity  to  determine  and  settle  a  disputed 
legal  title,  and  for  a  partition  of  the  land,  is  multifarious  ; 
and  the  same  will  not  lie  when  the  legal  title  is  in  dis- 
pute, or  when  it  depends  on  doubtful  facts;  and  when 
one  is  filed  and  the  pleadings  or  proofs  show  a  dispute 
about  the  legal  title  of  the  real  estate,  the  usual 
course  is  for  the  court  of  equity  to  retain  the  bill  until 
the  title  is  settled  by  law."'  A  co-tenant  asking  aid  of  a 
court  of  equity  for  a  partition  against  an  owner  who  has 
made  improvements  upon  the  property  is  entitled  to 
relief  only  upon  condition  that  any  equities  thereby  aris- 
ing shall  be  taken  into  account."  Where  a  complaint  was 
framed  to  present  a  cause  of  action  in  favor  of  the  plaint- 
iff under  the  statutes  of  the  State  of  California,  allegations 
directed  to  the  statement  of  the  legal  right  of  the  plaintiff 
to  maintain  the  action  were  indispensably  necessary.'' 

The  Supreme  Court  has  jurisdiction  of  all  actions  for 
partition,  and  while  the  proceedings  are  regulated  by 
statute,  it  is  for  the  court  to  say  whether  the  statute  has 
been  complied  with  or  not.  One  having  a  vested  remain- 
der (subject  to  a  life  estate)  in  an  undivided  half  of  cer- 
tain premises,  brought  an  action  for  partition.  All  the 
parties  interested  were  made  parties.    The  case  was  tried 

2<'  Murray  v.  Fitzsimmons,  2  Johns.  482. 

21  Chapin  v.  Sears,  18  F.  R.  814. 

22  Ford  V.  Knapp.  i  N.  Y.  S.  R.  362  ;  citing  62  N.  Y.  75  ;  3 
Paige,  546;  3  Ed.  Ch.  323;  2  Sand.  Ch.  64;  10  Fiarb.  592;  8  Price. 
518;  48  N.  Y.  106. 

23  Canbeis  v.  McDonald,  2  N.  Y.  S.  K.  130. 


158  THE    LAW    OF    PARTITION. 

at  Special  Term,  and  judgment  rendered  directing  a  sale 
of  the  premises.  No  findings  of  law  or  fact  were  made, 
and  no  exceptions  appeared  in  the  case,  save  exceptions 
filed  after  the  judgment,  to  the  "judgment "  and  "  decree." 
The  Court  of  Appeals  held,  that  the  exceptions  presented 
no  question  for  review,  and  the  only  question  which 
could  be  considered  was  as  to  the  jurisdiction  of  the 
Supreme  Court  to  entertain  the  proceedings  ;  that  the 
court  had  jurisdiction  of  the  parties  and  subject  matter, 
and  whether  it  erred  or  not  in  determining  whether  the 
case  was  a  proper  one  for  partition  or  sale,  it  could  not  be 
considered  in  the  Court  of  Appeals."  This  is,  undoubt- 
edly, a  wise  rule  of  law.  At  this  time,  its  interest  here  is 
from  the  fact  that  it  leads  us  to  the  further  rule,  that  if 
the  complaint  is  not  proper,  and  does  not  of  itself  show 
that  the  court  has  jurisdiction  of  either  the  subject-matter 
or  of  the  parties,  and  that  the  complaint  does  not  allege 
those  averments  that  are  made  necessary  by  the  statute, 
that  the  time  to  object  to  them  is  not  in  the  appellate 
court,  but  before  it  leaves  the  court  in  which  the  trial  is 
held. 

A  suit  in  partition  is  a  proceeding  "  in  rem;"  and  the 
jurisdiction  of  the  court  is  confined  to  the  subject-matter 
set  forth  in  the  petition."'' 

It  is  a  practice  and  custom  that  pleadings  may  be 
amended  within  a  proper  time,  if  the  facts  and  circum- 
stances arising  after  the  preparation  and  service  of  the 
pleadings  indicate  that  an  amendment  should  be  made. 
The  courts  have  been  liberal  in  this  practice,  and  have 
almost  invariably  allowed  the  amendments  to   be  made. 

2*  Howell  V.  Mills,  56  N.  Y.  226,  ante. 
25  Corwithe  v.  Griffing,  21  Barb.  9. 


THE    COMPLAINT.  I  59 

This  is  not  only  applicable  to  cases  in  partition,  but  to  all 
other  actions  at  law.  If  the  interests  are  incorrectly 
described,  it  is  competent  for  the  court  to  amend  the 
record  and  give  judgment  according  to  the  rights  of  the 
parties  ;  but  the  Supreme  Court  cannot  do  so  on  writ  of 
error,  where  the  jury  in  the  court  below  found  a  verdict 
against  evidence.-^  An  error  in  the  description  of  the 
interests  of  the  parties  may  be  amended.^' 

The  complaint,  in  a  partition  suit,  is  not  bad  for  a  mis- 
joinder of  actions,  because  it  sets  up  the  claim  of  one  of 
the  defendants  to  a  specific  lien  for  moneys  paid  to  extin- 
guish liens  on  the  premises  sought  to  be  partitioned,  and 
asks  for  an  account  to  be  taken  of  such  advances.  Cred- 
itors holding  liens,  simply  as  creditors,  need  not  be  made 
parties  at  the  commencement  of  the  suit.  But  the  claims 
of  one  defendant  may  be  disputed  by  either  of  his  co-de- 
fendants as  well  as  the  plaintiff,  and  these  claims  may  be 
tried  and  settled  in  a  partition  suit,  if  they  involve  inter- 
est in,  or  liens  on  the  property  sought  to  be  partitioned.'' 
Defendants  not  having  answered  the  complaint,  cannot 
be  required  to  account  for  rents,  if  the  complaint  do  not 
specifically  ask  such  relief.'^  The  Supreme  Court  cannot 
amend  by  consolidating  two  actions,  where  part  of  the 
land  lies  in  one  county,  and  part  lies  in  another,  and  where 
the  parties  defendants  are  different,  as  this  would  be  a  mis- 
joinder of  causes  of  action.™     The  defendant  should  not 

2*5  Thompson  ?'.  Wheeler,  15  Wend.  340;  citing  17  Johns.   221; 
Allinant  on  Pari.  75  ;   17  Ves.  552. 

27  Noble  7'.  Cromwell,   26    Barb.  475  ;    6  Abb.  59.     See  3  Abb. 
Ct.  App.  Dec.  382. 

28  Bogardus  v.  Parker,  7  How.  305,  ante. 

20  BuUwinker  v.  Rykcr,  12  Abb.  Pr.  311  ;  i  Barb.  500  ;  4  Paige, 
336  ;  2  Barb.  Ch.  398. 

30  Mayor  v.  Coffin,  90  N.  Y.  312,  ante. 


l6o  THE    LAW    OF    PARTITION. 

be  compelled  at  all  times  to  account,  even  though  the 
complaint  may  make  that  demand. '*  The  remedy  by  an 
action,  for  rents,  by  one  tenant  in  common  against 
another,  is  cumulative,  and  does  not  bar  the  equitable 
adjustment  of  them  on  a  partition  in  equity.  The  rents 
on  a  partition  are  a  lien  upon  the  shares  or  interest  of  any 
tenant  from  whom  they  may  be  due.  Where  rents  were 
due  from  one  tenant  in  common  at  the  time  of  the  death 
of  another,  the  administrator  of  the  latter  is  a  proper 
party  to  an  action  of  partition,  as  he  is  entitled  to  receive 
the  rents  due  his  intestate  at  the  time  of  his  death."'  But 
to  bring  the  question  of  rents  before  the  court,  there  must 
be  an  accounting,  and  it  is  not  a  mis-joinder  of  causes  of 
action  to  ask  that  there  be  an  accounting  of  the  rents 
and  profits  of  the  land.  It  has  been  held  that  a  tenant 
entering  under  a  person  claiming  the  whole  in  severalty, 
is  not  entitled  to  the  value  of  his  improvements  from  the 
person  recovering  as  co-tenant."  This  is,  undoubtedly,  a 
wise  and  well-established  rule  of  law.  The  courts  of 
Maine,  in  passing  upon  a  question  as  to  improvements  in 
a  case  where  the  following  facts  appear  :  the  legal  title 
to  land  was  in  defendant's  wife,  and  the  equitable  inter- 
est in  the  plaintiffs,  except  a  portion  of  a  certain  value, 
to  be  assigned  to  her  by  a  master, — Held,  that  a  barn 
erected  on  the  premises  in  controversy,  during  the  pen- 
dency of  the  suit,  became  a  part  of  the  realty,  and,  it  not 
appearing  that  it  was  erected  by  the  wife,  was  properly 
included  in  the  appraisal  by  the  master  of  the  premises 
set  off  to  the  plaintiff." 

31  Ford  V.  Knapp,  31  Hun,  522.     See   60   Barb.  163;  48  N.  Y. 
106;  18  Hun,  153;  13  Moak  Eng.  650. 

32  Scott  V.  Guernsey,  48  N.  Y.  106,  ante. 

33  Jackson  v.  Van  Denberg,  2  Caines,  301. 
3i  Samson  v.  Alexander,  67  Maine,  523. 


THE    COMPLAINT.  l6l 

Where  the  defendants  in  partition  pleaded  non-tcnent 
insimjil,  on  which  issue  was  joined  ;  and  it  appearing  that 
A,  one  of  the  defendants,  had,  before  the  service  of 
the  petition  and  notice,  conveyed  all  his  right  in  the 
premises  to  one  of  his  co-defendants,  who  was  before  a 
tenant  in  common  with  him;  the  court,  after  the  rights  of 
the  parties  had  been  ascertained,  by  the  verdict,  refused 
to  turn  the  plaintiffs  to  a  new  action,  on  account  of  a 
variance  between  the  petition  and  proofs,  as  to  the  quan- 
tity of  interest  in  the  respective  tenants  in  common  ;  but 
gave  judgment  that  as  to  A  the  plaintiffs  should  go  with- 
out day,  and  pay  his  costs  ;  but  that  as  to  the  other 
defendants,  the  plaintiffs  should  have  judgment,  on  the 
verdict,  according  to  the  proofs  in  the  cause." 

When  one  or  more  of  the  defendants  are  infants,  the 
complaint  should  aver  that  the  lands  therein  described 
are  the  only  lands  owned  in  common  by  the  parties,  as 
required  by  Rule  y^  of  the  Rules  of  1876.  Where  the 
complaint  fails  in  this  respect,  the  allegations  are 
defective,  because  of  their  uncertainty,  and  the  remedy  is 
by  motion,  and  not  by  demurrer.''  In  this  case,  the  court 
remarked  that  it  was  clearly  the  intention  of  the  pleader 
to  conform  to  the  rule,  and  perhaps  logically  he  did  so. 
But  it  would  seem,  from  a  careful  examination  of  the  case, 
that  the  complaint  was  defective,  as  it  did  not  place  the 
court  in  a  position  where  it  could  amply  protect  the 
interests  of  the  infant  or  infants  as  the  law  requires. 

The  right  of  dower  attaches  at  the  time  of  the  mar- 
riage, and  cannot  be  defeated  by  the  alienation  of  the 
husband    alone."      So  that,   although  the    marriage  may 

^■'  Ferris  7/.  Smith,  17  Johns.  221. 

36  Mofifatttv:  McLaughlin,  13  Hun,  449,  ««/<?. 

•'^  I  Cruise  Dig.  136. 


1 62  THE    LAW    OF    PARTITION. 

have  occurred  after  the  seizir,  the  rights  of  the  wife  or  of 
the  widow,  as  the  case  may  be,  of  the  tenant  in  common 
shall  be  explicitly  and  fully  set  forth,  and  the  court  should 
know  by  the  pleadings  and  proof  in  what  part  or  portion 
of  the  land  she  has  either  a  right  or  an  inchoate  right  of 
dower.  The  widow's  dower  should  be  first  assigned,  and 
a  division  then  be  made  of  the  residue  ;  and,  if  she  has 
married  again,  she  and  her  husband  should  be  made  par- 
ties.'' Where  the  court  assigned  the  reversion  of  the 
widow's  dower  to  one  of  several  heirs,  it  was  held  that 
the  decree  was  void,  and  that  the  other  heirs  were  enti- 
tled to  partition,  even  after  the  expiration  of  forty  years 
from  the  date  of  the  decree.'^  In  such  a  case  the  com- 
plaint in  the  subsequent  action  of  partition  should 
set  forth  said  assignment,  and  all  the  facts  and  cir- 
cumstances under  which  the  same  was  made,  together 
with  such  allegations  as  are  required  under  the  statute 
and  Code,  This  is  necessary  to  give  the  court  in 
which  the  action  is  brought  jurisdiction  of  the  subject- 
matter. 

The  proper  time  for  filing  notice  of  pendency  of  action 
for  partition,  is  at  the  time  of  the  filing  of  the  complaint. 
The  notice  of  pendency  becomes  a  part  of  the  records  in 
the  case  along  with  the  complaint  ;  and  if  the  plaintiff 
omit  to  file  any  of  the  papers  necessary  to  the  judgment, 
he  may  be  allowed  to  file  them  nunc  pro  imic,  and  the 
purchaser  is  not  "compellable"  to  take  title  until  such 
papers  are  properly  filed.*"  It  is  generally  conceded  that 
until  the  filing  of  the  complaint  the  notice  of  lis  pendens 
is  of  no  validity.     But  in    an    able    opinion    delivered  by 

38  Kurtz  V.  Snead,  12  Gratt.  260. 

39  Sumner  7).  Parker,  7  Mass.  79. 

40  Waring  v.  Waring,  7  Abb.  Pr.  472. 


THE   COMPLAINT.  1 63 

Justice  Ingraham,  the  nature  of  which  is  appended  to  the 
case  of  Waring  v.  Waring,  just  cited,  it  would  seem  that 
if,  after  the  filing  of  the  notice  of  pendency,  the  complaint 
is  then  filed,  that  the  complaint  gives  to  the  lis  pendens 
the  full  force  required  of  it  by  law.  The  fiHng  of  the 
notice  of  pendency  does  not  affect  subsequent  purchasers 
or  incumbrancers,  until  the  complaint  is  filed,  though  the 
action  may  be  commenced  by  actual  service  of  process, 
and  the  filing  of  such  notice  before  the  action  has  been 
commenced  is  a  nullity." 

Where,  in  an  action  for  partition,  all  necessary  parties 
were  joined,  any  error  in  stating  the  interests  and  shares 
of  the  parties,  or  any  omission  of  stating  what  on  motion 
the  plaintiff  might  have  been  compelled  to  insert  by  way 
of  amendment,  is  not  an  irregularity  which  can  affect  the- 
title.  The  purchaser  is  not  to  be  discharged  because  of 
the  plaintiff's  omission  to  allege  in  the  complaint  that; 
there  are  no  other  parties  in  interest  or  incumbrancers, 
than  those  joined,  or  the  referee's  omission  to  annex  to. 
the  report  the  searches.  If  there  are  other  incumbrances,, 
the  burden  is  on  the  purchaser,  who  asked  on  such 
grounds  to  be  discharged,  to  point  them  out."  Rule  65 
of  the  New  York  Court  Rules  is  as  follows  :  "  Where 
several  tracts  or  parcels  of  land  lying  within  this  State 
are  owned  by  the  same  persons  in  common,  no  separate 
action  for  the  partition  of  a  part  thereof  only  shall  be 
brought,  without  the  consent  of  all  the  parties  interested 
therein;  and  if  brought  without  such  consent,  the  share 
of  the  plaintiff  may  be  charged  with  the  whole  costs,  of 
the  proceedings  ;  and,  when  infants  are  interested,  the 
petition  shall   state  whether  or  not    the  parties  own    any 

*i  Burrough  v.  Reiger,  12  How.  171. 
*2  Noble  V.  Cromwell,  6  Abb.  Pr.  59. 


164  THE    LAW    OF    PARTITION. 

other  lands  in  common."  Rule  66  provides,  that  where 
the  rights  and  interests  of  the  several  parties,  as  stated  in 
the  complaint,  are  not  denied  or  controverted,  if  any  of 
the  defendants  are  infants  or  absentees,  or  unknown,  the 
plaintiff,  on  an  affidavit  of  the  fact,  and  notice  to  such  of 
the  parties  as  have  appeared,  may  apply  at  a  Special 
Term  for  an  order  of  reference,  to  take  proof  of  the 
plaintiff's  title  and  interest  in  the  premises,  and  of  the 
several  matters  set  forth  in  the  complaint  ;  and  to  ascer- 
tain and  report  the  rights  and  interests  of  the  several 
parties,  in  the  premises,  and  an  abstract  of  the  convey- 
ances by  which  the  same  are  held.  Such  referee  shall  in 
all  cases  be  selected  by  the  court. 

Where  a  plaintiff  undertakes  to  set  forth  the  facts 
which  constitute  his  title,  he  will  fail  unless  the  facts  are 
sufficient  to  clothe  him  with  the  title  asserted  ;  and  the 
facts  specially  pleaded  control,  and  not  the  general  aver- 
ments. Ordinarily,  an  action  for  partition  does  not  pre- 
sent the  question  of  title,  but  the  pleadings  may  be  so 
framed  as  to  present  that  question,  and  they  must  be 
good  upon  the  theory  on  which  they  are  drawn.*^ 

In  Indiana,  the  widow  takes  the  one  third  of  the 
husband's  real  estate  in  fee  simple  under  the  statute,  with 
the  descent  cast  by  law,  and  the  children  have  no  interest 
m  it  until  after  her  death,  whether  she  be  the  first,  second 
or  subsequent  wife,  and  they  inherit  from  her  ;  and  in  the 
case  of  a  childless  second  or  subsequent  wife,  their  right 
and  title  by  descent  from  her  will  not  be  good  if  by  a 
judgment  in  partition  at  the  suit  of  the  widow,  as  such 
judgment,  when  it  operates  upon  titles,  only  affects  pres- 

43  Spencer  7/.  McConagle,  5  West.  R.  663.  See  71  Id.  422  ;  72 
Id.  428  ;  97  Id.  458  ;  102^.352;  103  Id.  27;  106  Id.  73;  104  Id. 
392;  6  North-eastern  R.  920,  912  ;  5  Id.  74;  91  Ind.  96;  104  Id.  13. 


THE  COMPLAINT.  1 65 

ent  and  not  after-acquired  titles.  An  averment  in  such 
a  case  for  partition  that  the  widow  was  the  owner  in  fee 
simple  of  the  undivided  one  third  of  the  real  estate,  was 
in  the  statutory  sense  true,  and  did  not  raise  the  question 
of  the  right  of  the  children  to  inherit  from  the  widow  the 
portion  that  might  be  set  off  to  her/* 

^  Thorp  v.  Hanes,  5  Western  R.  845.  See  10  Ind.  566;  86  Id. 
527;  91  Id.  511  ;  41  N.  Y.  113;  9  N.  J.  Eq.  702 ;  10  Pick.  391  ;  loi 
Ind.  481  ;  97  Id.  27. 


CHAPTER  XII. 


THE  ANSWER. 


The  action  of  partition  will  lie  whenever  two  or  more 
persons  hold  and  are  in  possession  of  real  property  as 
joint  tenants,  or  tenants  in  common,  in  which  either  of 
them  has  an  estate  of  inheritance,  or  for  life,  or  for  years. 
The  property  is  to  be  partitioned  in  accordance  with  the 
respective  rights  of  the  persons  interested  therein,  and  to 
be  sold  if  it  appears  that  a  partition  thereof  cannot  be 
made  without  great  prejudice  to  the  owner/  The  object 
of  this  rule  is  well  established  as  the  law  governing  the 
division  of  real  property  among  co-tenants,  when  applica- 
tion for  such  division  has  to  be  made  to  the  court,  and 
inasmuch  as  there  can  be  no  false  construction  placed 
upon  this  rule  by  the  intelligent  practitioner,  the  answer 
should  never  be  interposed,  unless  there  is  an  actual 
defense.  It  often  occurs  that  an  answer  will  be  interposed, 
which  in  substance  admits  the  various  allegations  of  the 
complaint,  and  closes  with  a  prayer  asking  the  same 
rehef  that  is  asked  by  the  plaintiff  in  his  complaint,  and 
for  costs.  It  is  evident  that  such  an  answer  can  only  be 
put  in  for  one  of  two  purposes  :  the  first,  is  to  hinder  and 
delay  the  plaintiff  in   procuring   the    relief  which   he    is 

1  McCall  Real  Prop.  256. 
[166] 


THE    ANSWER.  167 

entitled  to,  and  demands  ;  the  other,  for  the  purpose  of 
procuring  for  the  defendant,  or  his  attorney,  a  bill  of  costs 
for  the  performance  of  services  which  are  absolutely  worth- 
less. The  answer  should  set  forth  such  things  as  a 
defense,  which,  if  proven,  would  be  an  actual  defense  to 
the  allegations,  or,  at  least,  the  material  allegations  of 
the  complaint.  The  plaintiff  in  his  first  pleading  may 
set  forth  some  allegations  relative  to  the  interests,  share 
or  claim  of  some  fellow  co-tenant,  or  some  defendant 
who  is  interested  in  the  premises,  and  not  a  co-tenant,  in 
such  a  way  that  the  rights  of  such  fellow  co-tenant  or 
defendant  are  placed  falsely  before  the  court  ;  then  an 
answer  is  necessary  to  protect  the  interests  and  rights  of 
the  defendants  who  are  attacked,  or  whose  position  is 
wrongfully  stated  in  the  complaint ;  and  again,  the  com- 
plaint, in  alleging  what  the  plaintiffclaims  to  be  his  rights, 
may  claim  more  than  rightfully  belongs  to  the  plaintiff, 
and  thus 'place  his  fellow  co-tenant  upon  the  defense  ; 
again,  is  an  answer  necessary  that  the  defendants  may 
receive  the  rights  to  which  the  law  entitles  them.  Friv- 
olous answers  should  not  be  allowed.  Neither  should 
frivolous  matter  be  alleged,  or  mixed  with  matters  that 
are  proper  for  a  defense,  as  such  things  incumber  the  case 
and  take  up  the  time  of  the  court,  delay  the  rights  of 
those  who  are  seeking  such  rights  in  the  courts,  and  en- 
large the  cost  and  expenses  of  the  litigation. 

Pleading  has  been  defined  to  be  "  the  statement,  in  a 
logical  and  legal  form,  of  the  facts  which  constitute  the 
plaintiffs  cause  of  action,  or  the  defendant's  ground  of 
defense  ;  it  is  the  formal  mode  of  alleging  on  the  record, 
that  which  would  be  the  support  or  the  defense  of  the 
parties  in  evidence."  ^ 

2  I  Wait  Act.  &  D.  44, 


1 68  THE    LAW    OF    PARTITION. 

The  old  suit  in  equity  for  the  partition  of  lands  is  now 
merged  in  the  civil  actions  under  the  Code,  and,  as  such, 
may  be  prosecuted  by  summons  and  complaint.  It  is  a 
regular  proceeding,  inasmuch  as  it  is  prosecuted  by  and 
against  regular  parties,  and  according  to  the  same  forms 
of  proceedings  and  rules  of  practice  with  other  actions 
under  the  Code.'  Therefore,  the  same  general  rules  of 
pleading  are  to  be  applied  that  are  applicable  in  other 
cases  ;  and,  so  far  as  the  answer  is  concerned,  it  must  be 
plain,  concise  and  not  verbose,  as  the  more  simple  and 
plain  the  allegations  are  made  the  better  it  is  for  the 
parties  interested.  It  must  contain  either  of  the  fol- 
lowing : 

1.  A  general  or  specific  denial  of  each  material  allega- 
tion of  the  complaint  controverted  by  the  defendant,  or 
of  any  knowledge  or  information  thereof  sufficient  to  form 
a  belief. 

2.  A  statement  of  any  new  matter  constituting  a 
defense  or  counter-claim,  in  ordinary  and  concise  language, 
without  repetition.*  Under  a  general  denial  in  an  answer, 
the  defendant  has  the  right  to  give  evidence  controvert- 
ing any  facts  necessary  to  be  established  by  the  plaintiff, 
but  cannot  prove  a  defense  founded  upon  new  matter.* 
To  entitle  a  purchaser  to  the  protection  of  a  court  of 
equity  as  against  the  legal  title  or  prior  equity,  he  must 
not  only  be  a  purchaser  without  notice,  but  he  must  be  a 
purchaser  for  a  valuable  consideration  actually  paid  ;  he 
must  have  paid  the  purchase-money  or  some  part  thereof, 
or  have  parted  with  something  of  value  upon  the  faith  of 
such  purchase,  before  he  had  notice  of  the  prior    right    or 

3  Myers  v.  Rasback,  4  How.  Pr.  82 ;  2  Code  R.  1 3. 

4  4  N.  Y.  Code  Civ.  Pro.  I  500. 

5  Weaver  v.  Barden,  49  N.  Y.  286. 


THE    ANSWER.  l6g 

equity.  To  avail  himself  of  such  an  innocent  purchase, 
he  must  set  forth  such  purchase,  and  the  circumstances 
surrounding  the  same,  fully  in  his  answer/ 

Section  519  of  the  New  York  Code  of  Civil  Procedure 
requires,  that  the  allegations  of  any  pleading  shall  be 
liberally  construed.  This  is,  undoubtedly,  the  general 
rule  of  law,  both  where  the  Code  practice  is  in  vogue  or 
the  practice  of  common  law.  But  this  has  been  held  to 
apply  only  to  the  matters  of  form  of  the  pleading.  Not- 
withstanding the  liberal  construction  which  the  courts 
are  willing  to  place  upon  the  pleadings,  it  is  still  the  duty 
of  a  party  to-  present  a  clear,  unequivocal  statement  of 
his  cause  of  action  or  defense  ;  and  when  a  material  state- 
ment is  susceptible  of  two  meanings,  the  one  most 
unfavorable  to  the  pleader  must  be  taken.  While 
it  is  competent  for  the  opposite  party  to  move  to 
make  the  pleading  more  definite  and  certain,  he  is  not 
bound  so  to  do  ;  this  burden  may  not  be  cast  upon  him 
by  the  fault  of  the  pleader.  An  instance  of  this  rule  is, 
where  the  answer  contained  three  defenses,  separately 
stated.  The  first,  alleged  that  the  injuries  complained  of 
in  the  complaint  were  caused  and  contributed  to  by  the 
injured  party.  The  second,  set  up  a  settlement  and  com- 
promise of  the  claim.  The  third  denied  "  each  and  every 
other  allegation  "  in  the  complaint  not  before  specifically 
"admitted,  qualified  and  denied."  The  court  held,  that 
the  answer  did  not  put  in  issue  the  allegations  of  the 
complaint  ;  that  the  denial  was  not  such  a  denial  of  the 
allegations  as  to  make  either  a  general  or  special  issue.' 
Where  the  complaint  is  in  general  denied,  it  is  not  sufifi- 

6  See  36  Hun,  423;  7  How.  36;  i  N,  Y.  86  ;  24  Id.  74. 

7  Clark  V.  Dillon,  97  N.  Y.  370. 


170  THE    LAW    OF    PARTITION. 

cient  for  the  defendant  to  deny  such  portions  thereof  as 
are  not  otherwise  admitted  or  avoided,  the  Code  not  hav- 
ing provided  for  such  mode  of  pleading.  Accordingly, 
where  the  answer  contained  admissions  and  specific 
denials  of  various  allegations  of  the  complaint,  and,  with 
respect  to  the  others,  added  that  the  defendant  "  denies 
each  and  every  allegation  in  said  complaint  contained, 
not  hereinbefore  admitted  or  avoided," — Held,  that  such 
form  of  denial  was  not  authorized  by  section  500  of  the 
Code.  The  denial,  if  in  general,  must  be  specific  ;  the 
purpose  and  intent  of  the  Code  being  to  oblige  the  few 
making  the  denial  to  direct  his  answer  to  the  particular 
allegations  intended  to  be  controverted,  and  to  do  it  in 
such  a  manner  that  the  court  and  the  opposite  party  can 
see  at  once  upon  what  issue  is  intended  to  be  taken.*  A 
denial  of  each  and  every  material  allegation  of  the  com- 
plaint is  open  to  a  motion  to  make  it  more  definite  and 
certain."  And  so  also  is  one  that  denies  each  and  every 
material  allegation  in  said  amended  complaint  contrary 
to  or  inconsistent  with  any  of  the  allegations  in  the  fore- 
going answer  not  heretofore  admitted,  ignored  or  denied." 
An  answer  alleging  that  "  the  defendant  denies  each  and 
every  allegation  in  the  complaint  contained,  and  not 
hereinbefore  specifically  admitted  or  denied,  or  not  here- 
inbefore specifically  admitted  or  avoided,"  is  neither  gen- 
eral or  a  specific    denial."*     A   denial  in    the  alternative 

8  Miller  v.  McCloskey,  i  Civ,  Pro.  252  ;  citing  66  N.  Y.  334  ; 
70  N.  Y,  126. 

9  Mattison  v.  Smith,  19  Abb.  Pr.  288;  i  Robt.  706. 

10  Hammond  v.  Earl,  5  Abb.  N.  C.  105. 

11  McEncroe  v.  Decker,  58  How.  250. 

»•  As  to  denials  generally,  see  58  How.  274;  9  Abb.  N.  C.  379  ; 
38  N.  Y.  1 37  ;  48  How.  82 ;  46  N.  Y.  688  ;  44  Id.  565  ;  33  Id.  83 ;  38 
Id.  423 ;  5  Week.  Dig.  477  ;  20  Barb.  344 ;  13  How.   112;  15  Abb. 


THE    ANSWER.  I7I 

form  is  defective  and  open  to  a  motion  to  make  it  more 
definite  and  certain.'"  A  conjunctive  form  of  denial  is 
bad."  Under  the  Code  system  of  pleading,  an  answer 
must  either  deny  allegations  found  in  the  complaint,  or 
state  new  matter  ;  and  it  seems  that  the  proper  mode  for 
making  an  admission  is  by  silence."  Where  a  denial  is 
made  upon  information  and  belief,  it  must  be  so  stated  in 
the  body  of  the  pleading,  and  such  denials  are  to  be  con- 
strued for  all  purposes,  including  a  criminal  prosecution, 
to  mean  that  it  was  made  upon  information  and  belief  of 
the  person  verifying  such  pleading.''  The  above  are 
referred  to  here  not  as  being  decisions  made  upon  parti- 
tion cases,  but  as  coming  within  the  general  rules  govern- 
ing the  pleadings  of  the  defendant. 

The  answer  may  put  at  issue  the  same  question 
between  two  or  more  defendants.  In  such  a  case,  all  of 
the  defendants  that  will  be  affected  by  the  determination 
or  final  judgment  have  their  rights,  and  can  come  into 
court  and  protect  those  rights.^  This  often  happens  in 
partition  cases. 

346  ;  21  Hun,  436  ;  24  Id.  347  ;  74  N.  Y.  61  ;  18  How.  240  ;  5  T.  & 
C.  449- 

12  Otis  V.  Ross,  8  How.  Pr.   193 ;  11  N.  Y.  Leg.  Obs.  343. 

13  Hopkins  v.  Averett,  6  How.  Pr.    159. 

14  Gould  V.  Williams,  9  How.  Pr.  59,  427,  217. 

15  Throop's  note  to  section  524. 

b  Where  the  judgment  may  determine  the  ultimate  rights  of 
two  or  more  defendants,  as  between  themselves,  a  defendant  who 
requires  such  a  determination  must  demand  it  in  his  answer,  and 
must  at  least  twenty  days  before  the  trial  serve  a  copy  of  his 
answer  upon  theattorney  foreach  of  the  defendants  to  be  affected 
by  the  determination,  and  personally,  or  as  the  court  or  judge 
may  direct,  upon  defendants,  so  to  be  affected  who  have  not  duly 
appeared  therein  by  attorney.  The  controversy  between  the 
defendant  shall  not  delay  a  judgment,  to  which  the  plaintifl  is 


172  THE    LAW    OF    PARTITION. 

Section  1543  of  the  New  York  Code  of  Civil  Procedure 
provides,  that  the  titles  of  the  parties  may  be  tried,  and 
when  the  titles  of  the  parties  are  before  the  court,  section 
521  of  the  Code,  above  referred  to,  must  be  complied 
with."  The  title  or  interest  of  the  plaintiff  may  be  con- 
troverted by  any  defendant,  or  any  defendant  may  con- 
trovert the  title  or  interest  of  one  or  more  of  his  co- 
defendants  ;  and  that  question  must  be  settled,  and  the 
title  established  before  judgment  of  partition  can  be 
rendered.  This  somewhat  changes  the  practice  in  vogue 
before  the  present  New  York  Code,_^where  the  courts 
held,  that  the  titles  of  the  parties  should  be  first  estab- 
lished by  proper  action  before  proceedings  for  partition 
could  be  had."  Under  the  Code  practice,  where  a  hus- 
band conveyed  to  his  wife  through  a  third  person  the 
westerly  half  of  a  block  of  land  owned  by  him,  on  which 
half  were  situated  the  dwelling-house  occupied  by  him  as 
a  homestead,  and  the  out-buildings,  and  the  will  con- 
tained the  following  clause  :  "  I  have  heretofore  conveyed 
through  a  third  person  to  my  said  wife  the  house  and  lot 
which  I  now  occupy,  and  it  is  my  wish  and  desire,  which 
I   trust    my  wife  will   regard,  that    she  will    not  sell   or 

entitled,  unless  the  court  otherwise  directs.  N.  Y.  Code  Civ.  Pro. 
§521. 

c  The  title  or  interest  of  the  plaintiff  in  the  property,  as  stated 
in  the  complaint,  may  be  controverted  by  the  answer.  The  title 
or  interest  of  any  defendant  in  the  property,  as  stated  in  the  com- 
plaint, may  also  be  controverted  by  his  answer,  or  the  answer  of 
any  other  defendant ;  and  the  title  or  interest  of  any  defendant, 
as  stated  in  his  answer,  may  be  controvered  by  the  answer  of  any 
other  defendant.  A  defendant,  thus  controverting  the  title  or 
interest  of  a  co-defendant,  must  comply  with  section  521  of  this 
act.  The  issues,  joined  as  prescribed  in  this  section,  must  be  tried 
and  determined  in  the  action.     N.  Y.  Code  Civ.  Pro.  §  1543. 

16  Van  Schuyver  v.  Mulford,  59  N.  Y.  426,  ante. 


THE    ANSWER.  I  73 

incumber  said  house  and  lot  during  her  life,  but  will  retain 
and  occupy  it  as  a  house  for  herself  and  such  of  my  chil- 
dren as  may  need  or  require  one."  The  court  held,  that 
no  real  estate  was  devised  by  this  clause  of  the  will,  and 
that  the  wife  did  not  acquire  any  title  or  interest  in  the 
westerly  half  of  said  block  thereof  by  grant  from  her 
husband,  or  under  said  will,  and  that  the  question  of  title 
might  now  be  tried  and  determined  in  an  action  for  parti- 
tion." Where  the  title  is  denied  in  the  answer,  the 
burden  of  proof  is  on  the  claimant  out  of  possession." 
It  is  a  uniform  and  fundamental  rule  in  chancery  suits 
that  evidence  sufficient  to  sustain  the  decree  must  be  pre- 
served in  the  record  in  some  mode,  otherwise  the  decree 
will  be  reversed.*'  There  is  a  rule  of  law,  which  may  be 
of  interest  here,  that  a  party  will  not  be  permitted  to  ques- 
tion a  transaction  which  in  any  way  affects  his  interest."" 

In  an  action  for  partition,  it  seems  that  defendants 
claiming  an  interest  in  or  lien  upon  the  premises  sought 
to  be  partitioned,  will  be  obliged  to  litigate  the  validity 
thereof  with  a  co-defendant  who,  under  section  1543 
above  referred  to,  controverts  their  interest  or  lien,  not- 
withstanding all  the  allegations  in  the  complaint  relating 
to  their  interest  in  the  premises  have  been  struck  out  by 
order  of  the  court.  Where  a  pleading  contains  a  sem- 
blance of  a  cause  of  action  or  defense,  its  sufficiency  can- 
not be  determined  upon  a  motion  to  strike  it  out  as  irrel- 
evant or  redundant.  The  question  as  to  the  sufficiency 
of  a  pleading  in    stating   a  cause    of  action    or   defense 

1'^  Knapp  V.  Burton,  7  Civ.  Pro.  448,  ante. 

18  Ransom  v.  Henderson,  i  Western  R.  636.  See  6"]  111.  236  ; 
48  Id.  in;  2  Glim.  279 ;  78  111.  553  ;  3  Ired.  209 ;  4  Rand.  74  ;  1 5 
Am.  Dec.  731  ;  14  Ga.  521  ;  60  Am.  Dec.  655  ;   14  Ohio,  502. 

19  Pankey  v.  Raum,  51  111.  88  ;  15  Bradw.  331. 

20  Mfg.  &  M.  Co.  V.  Cady,  96  111.,  430.     See  98  111.  511. 


174  THE    LAW    OF    PARTITION. 

against  a  party,  or  as  to  his  liability  upon  a  given  state  of 
facts,  can  properly  be  raised  only  by  a  demurrer  to  such 
pleading.  On  a  motion  to  strike  out  the  allegations  of  a 
complaint  referring  to  the  interest  of  a  defendant,  as 
irrelevant  or  redundant,  the  question  whether  he  was 
properly  made  a  party  defendant  cannot  be  raised  or 
determined.  The  power  of  the  court  to  expunge  matter 
from  a  pleading,  upon  motion,  for  irrelevancy,  refers  to 
such  matter  as  is  irrelevant  to  the  cause  of  action  or 
defense  attempted  to  be  stated  in  the  pleading  against 
the  party  moving  to  expunge,  and  does  not  enable  a 
party  to  strike  out  allegations  relating  to  himself  because 
they  are  irrelevant  to  an  alleged  cause  of  action  against 
some  other  party."^  An  allegation  that  the  defendant's 
wife  has  an  inchoate  right  of  dower  and  is  a  necessary 
party  to  the  action  does  not  state  any  defense." 

An  answer  in  a  partition  suit  which  alleges  that  the 
defendant,  one  of  the  tenants  in  common,  owns  the  lot 
adjoining  one  of  the  lots  sought  to  be  partitioned  ;  that 
their  father,  from  whom  the  estate  comes,  in  his  life  caused 
to  be  erected  a  two  story  and  basement  building  with 
stone  foundation,  partly  on  defendant's  own  lot  and  one 
of  the  lots  involved  in  such  suit,  without  authority,  so  far 
as  defendant's  lot  was  concerned,  and  asked  to  be 
awarded  full  possession  of  his  lot,  and  for  five  hundred 
dollars  damages,  is  a  nullity,  and  the  usual  order  of  refer- 
ence as  upon  default  is  proper."  Where,  in  a  partition 
suit,  one  of  the  parties  in  interest  has  in  his  possession  a 
portion  of  the  estate,  and  has  been  in  the  habit  of  collect- 

21  Hagerty  v.  Andrews,  4  Civ.  Pro.  R.  323  ;  also  94  N.  Y.  195 ; 
see  4  Paige,  441  ;  55  N.  Y.  442. 

22  Kay  V.  Whitaker,  44  N.  Y.  565. 

23  Nolan  V.  Skelly,  62  How.  Pr.  102. 


THE    ANSWER. 


175 


ing  the  rents,  as  he  alleges,  for  the  protection  of  the 
income  from  waste,  and  a  receiver  of  such  property  should 
not  be  appointed  upon  affidavit  upon  information  and 
belief,  that  such  party  is  of  little  or  of  no  responsibility." 
In  an  action  for  the  partition  of  lands,  on  which  there  has 
been  a  stone-quarry,  a  tenant  in  common,  who  is  made  a 
defendant,  may  set  up  in  his  answer  that  the  defendant 
has  been  in  the  sole  possession  of  the  premises,  has  col- 
lected the  rents  thereof,  quarried  and  sold  stone  there- 
from, and  may  require  an  account  to  be  rendered  of  the 
moneys  so  received  by  the  plaintiff,  and  have  an  allow- 
ance made  to  himself  therefor. "'  A  co-tenant,  out  of  the 
actual  occupation,  asking  the  aid  of  a  court  of  equity  for 
partition  against  a  co-tenant,  who  has  made  improve- 
ments lipon  the  property,  is  entitled  to  relief  only  upon 
condition  that  no  equities  thereby  arising  shall  be  taken 
into  account.  And  in  such  cases,  the  defendants  are 
entitled  to  an  allowance  for  the  enhanced  value  of  the 
property  resulting  from  the  repairs  and  improvements 
made  by  them.''  When  all  the  questions  that  arise  in 
the  action  are  submitted  to  the  court,  without  an  answer 
or  objection,  no  appeal  will  lie,  and  if  the  questions  are 
submitted  without  objection,  those  objections  cannot  be 
raised  upon  appeal." 

To  maintain  an  action  for  partition  of  lands,  the 
plaintiff  must,  at  its  commencement,  have   actual  or  con- 

24  Darcin  v.  Wells,  61  How.  Pr.  259. 

25  McCabe  v.  McCabe,  18  Hun,  153.  See  18  Barb.  665  ;  48  N. 
Y.  108;  40  Barb.  300;  15  Hun,  309;  44  Barb.  447;  L.  R.  20  Eq. 
84;  I  Parsons  Pa.  R.  470;  22  Grant  Can.  562. 

26  Ford  V.  Knapp.  102  N.  Y.  135.  See  72  N.  Y.  575  ;  9  Bush, 
313 ;  68  Me.  568 ;  6  Dana,  281  ;  27  Gratt.  414 ;  33  N.  J.  Eq.  421  ;  79 
111.  446;  18  Mo.  471  ;  II  Heisk.  669  ;  Cooley  on  Tax.  346  ;  3  Paige, 
545- 

27  Barnard  v.  Onderdonk,  98  N.  Y.  158. 


176  THE    LAW    OF    PARTITION. 

structive  possession  in  common  with  the  defendants  ; 
and  the  possession  of  one  of  the  co-tenants  in  common 
may  become  adverse,  when  his  acts  amount  to  an  exclu- 
sion of  his  co-tenants  ;  and  this  may  be  set  up  as  a 
defense.  -^  Where  the  plaintiffs  in  a  bill  in  equity  for 
partition  were  formerly  in  possession  of  the  premises  as 
tenants  in  common,  and  the  defendant  set  up  in  his 
answer  an  exclusive  title,  the  bill  will  be  dismissed.  "' 
The  defendant  may  set  up  in  his  answer  an  equitable 
title  to  the  premises,  a  cross  bill  not  being  necessary  for 
that  purpose,  when  he  seeks  merely  a  dismissal  of  the 
bill. '"'  If  the  plaintiff  aver  that  he  and  the  defendant  are 
owners  of  certain  land  and  in  possession  of  the  same  as 
tenants  in  common,  an  answer  which  denies  that  they  are 
owners,  and  in  possession  as  tenants  in  common  or  other- 
wise, is  not  a  sufficient  denial  of  the  common  occupancy 
of  the  land  by  them."  Where  the  defendant  does  not 
aver  any  of  the  allegations  of  the  complaint,  but  merely 
sets  up  a  partnership  between  the  owners,  the  answer  is 
bad.  ^^  A  judgment  of  partition  ought  not  to  be  rendered 
when  it  will  permit  the  plaintiff,  or  compel  the  defend- 
ants to  commit  a  breach  of  trust.  ^'  The  mere  putting  in 
of  an  answer  claiming  title  to  the  whole  premises  does 
not  prevent  the  court  from  ascertaining  whether  any  such 
title  existed,  or  from  determining  whether  there  was  a 
subsisting  adverse  possession.  ^* 

28  Florence  v.  Hopkins,  46  N.Y.  182. 

29  Matthewson  v.  Johnson,   i   Hoffman   Ch.    559.      Contra,  5 
Jones,  22. 

^^  German  v.  Machin,  6  Paige,  288. 

31  Crosier  v.  McLaughin,  i  Nevada,  348. 

32  Hughes  V.  Devlin,  23  Cal.  509. 

33  Baldwin  v.  Humphrey,  44  N,  Y.  609. 

3-t  Wainman  v  Hampton,  20  N.  Y.  Week.  Dig.  68.      See  4  Civ. 
Pro.  R.  323. 


THE    ANSWER. 


177 


An  answer  which  does  not  confess  or  avoid  the  cause 
of  action,  but  which  affirms  facts  which  are  utterly  incon- 
sistent with  the  truth  of  facts  constituting  a  material 
element  of  the  cause  of  action,  is  but  an  arg-umentative 
denial  pro  tanto  of  the  complaint,  and  leaves  the  burden 
of  the  issue  upon  the  plaintiff  with  the  right  to  open  and 
close  the  case  upon  the  trial.  ''  An  averment  that  the 
pleader  cannot  admit  or  deny  the  allegations  but 
demands  proof  of  the  same,  is  no  traverse  of  the  facts 
alleged.  ^® 

In  Vermont,  an  objection  to  the  capacity  of  a  party 
to  sue, — for  instance  that  he  is  insane, — must  be  made  by 
pleading,  and  not  by  answer." 

In  partition,  if  the  defendants  do  not  appear,  the 
court  will,  on  motion,  make  an  order  for  partition  as 
prayed.''  A  referee,  appointed  in  partition  to  take  proof, 
is  bound  by  the  pleadings,  and  cannot  find  the  interest  of 
the  parties  to  be  otherwise  than  as  stated  and  admitted 
in  said  pleadings.  '' 

The  following  general  rules  in  regard  to  an  answer 
are  of  interest  here,  in  case  relief  is  sought  by  the  bill. 
The  answer  contains  both  the  defendant's  defense  to  the 
case  made  by  the  bill,  and  the  examination  of  the  defend- 
ant, on  oath,  as  to  the  facts  charged  in  the  bill,  of  which 
his  discovery  is  sought.  "     These  parts  were  kept  distinct 

35  Shulse  V.  McWilliams,  i  West.  R.  492.  See  93  Ind,  198  ;  loi 
Ind.  573;  I  Work   Pr.  369. 

36  Home  Building  &  Loan  Assoc,  v.  Clark,  i  West.  R.  337. 

37  Hoyt  V.  Hoyt,  i  New  Eng.  R.  638.  Contra,  54  Vt.  45  ;  2 
Vt.  339  ;  34  Vt.  256  ;  7  Wallace,  542  ;  90  U.  S.  bk.  23  L.  Ed.  70; 
54  Vt.  208 . 

38  Beekmanz/.  Beekman,  i  Caines,  121. 

3!>  McAlearz/.  Delaney,  19  N.  Y.  Week.  Dig,  252. 
*o  Gresley  Ev.  19. 
12 


178  THE    LAW    OF    PARTITION. 

from  each  ether  in  the  civil  law  ;  their  union  in  chan- 
cery has  caused  much  confusion  in  equity  pleadings.  " 
The  answer  is  in  form  usually  as  follows  :  First,  the  title 
specifying  which  of  the  defendants  it  is  the  answer  of, 
and  the  names  of  the  plaintiffs  in  the  cause  of  which  it 
is  iiled  as  answer.  ^^  Second,  a  reservation  to  the  de- 
fendant of  all  the  advantages  which  might  be  taken 
by  exception  to  the  bill,  which  is  mainly  effectual  in 
regard  to  other  suits,  ^'  Third,  the  substance  of  the 
defense,  according  to  the  defendant's  knowledge,  re- 
membrance, information,  or  belief,  in  which  the  matters 
set  up  in  the  bill  with  the  interrogatories  founded 
thereon,  are  answered,  one  after  the  other,  together 
with  such  additional  matter  as  the  defendant  thinks 
necessary  to  bring  in  his  defense,  either  for  the  pur- 
pose of  qualifying  or  adding  to  the  case  made  by  the 
bill,  or  to  state  a  new  case  in  his  own  behalf.  A  general 
traverse  or  denial  of  all  unlawful  combinations  charged 
in  the  bill,  and  of  all  matters  therein  contained.  The 
above  may  be  considered  the  old  common-law  rule,  much 
of  which  it  is  well  to  follow  at  this  time.  The  answer  must 
be  full  and  perfect  to  all  of  the  material  allegations,  con- 
fessing and  avoiding,  denying  or  traversing,  all  of  the 
material  parts,  ^  It  must  state  facts,  and  not  arguments.  " 
It  may  be  amended.  ** 

41  Story  Eq.  PI.  §  850. 

4242  Ves.  79 ;  I  Russ.  441  ;  17  Ala.  N.  S.  89. 

^  I  Hempst.  715  ;  4  Md.  107. 

4428N.  H.  440;  10  Ga.  442;  3  Halst.  Ch.  17;  13  111.  319;  21 
Vt.  326. 

*5  7  Ind.  661  ;  24  Vt.  70 ;  9  Mo.  605  ;  18  Ark.  215  ;  17  Eng.  L. 
&  Eq.  509  ;  22  Ala.  221, 

46  2  Brown  Ch.  143  ;  2  Ves,  85  ;  36  Me.  124  ;  7  Ga.  99. 


CHAPTER  XIII. 


TRIAL     OF     ISSUES. 


The  Constitution  preserves  the  right  of  trial  by  jury 
in  suits  at  common  law,'  and  in  all  cases  in  which  it  has 
heretofore  been  used,  and  shall  remain  inviolate  forever  ; 
but  the  parties  have  a  right  to  waive  a  jury  at  any  time 
they  deem  proper  to  do  so.^  The  jury  intended  is  a  com- 
mon-law jury  of  twelve  men.'  The  right  to  jury  trial 
extends  only  to  cases  in  which  it  had  been  exercised  be- 
fore the  adoption  of  the  original  Constitution.*  In  parti- 
tion cases,  in  New  York  State,  where  there  is  an  issue,  the 
parties  are  entitled  to  a  trial  by  jury,  by  the  express 
provision  of  the  Code."  Upon  the  trial  by  a  jury  of  issues 
settled  in  an  equity  action,  the  court  has  no  authority  to 
non-suit  the  plaintiff.  The  jury  must  find  upon  the  issues, 
and  their  findings  must  be  presented  to  the  court  upon  the 
final  hearing.  If  proof  is  necessary  to  establish  facts  not 
admitted  in  the  pleadings  or  found  by  the  jury,  such  proof 

1  Const.  U.  S.  art.  VII. 

2  N.  Y.  Const,  art.  I.  §  2. 

3  Wynehamer  v.  People,  13  N.  Y.  378.     See  20  Barb.  567. 

4  Duffy  V.  People,  6  Mill,  75.     See  4  N.  Y.  Leg.  Obs.  307. 

•  An  issue  of  fact  joined  in  the  action  is  triable  by  a  jury.  Un- 
less the  court  directs  the  issues  to  be  stated,  as  prescribed  in 
section  970  of  this  act,  the  issues  may  be  tried  upon  the  pleadings. 
N.  Y.  Code  Civ.  Pro.  §  1544. 

['79] 


l8o  THE     LAW    OF     PARTITION. 

must  then  be  given.  The  court,  using  the  findings  of  the 
jury  for  its  information,  finds  the  facts  and  decides  the 
law  substantially  as  if  all  the  issues  had  been  regularly 
tried  before  it,  and  exceptions  may  be  taken  in  the  sam.e 
manner  as  if  the  case  had  been  so  tried,  and  findings  not 
thus  excepted  to  cannot  be  questioned  upon  appeal  to 
this  court/  The  court,  upon  the  hearing  of  the  application 
for  a  trial  by  jury,  must  cause  the  issues  before  the  trial 
to  be  distinctly  and  plainly  stated.  The  subsequent  pro- 
ceedings are  the  same  as  where  questions,  arising  upon 
the  issues,  are  stated  for  trial  by  a  jury,  in  a  case  where 
neither  party  can,  as  of  right,  require  such  a  trial ;  except 
that  the  finding  of  the  jury,  upon  each  question  so  stated, 
is  conclusive,  unless  the  verdict  be  set  aside,  and  a  new 
trial  granted. ** 

After  the  joining  of  issue,  the  court  may,  by  consent 
of  the  parties,  order  a  reference  to  determine  any  issue  or 
question  of  fact,  instead  of  directing  the  same  to  be  tried 
by  a  jury.  When  in  such  cases  the  referee  is  directed  to 
report  his  proofs  with  his  findings,  his  report  has  the  same 

5  Birdsall  v.  Patterson,  51  N.  Y.  44.  See  12  Barb.  385  ;  Van 
Santvoord   Eq.  Pr.  261,  500. 

''  Where  a  party  is  entitled,  by  the  Constitution,  or  by  the 
express  provision  of  law,  to  a  trial,  by  a  jury,  of  one  or  more  issues 
of  fact,  in  an  action  specified  in  section  968  of  this  act,  he  may 
apply,  upon  notice,  to  the  court  for  an  order,  directing  all  the 
questions,  arising  upon  those  issues,  to  be  distinctly  and  plainly 
stated  for  trial  accordingly.  Upon  the  hearing  of  the  application, 
the  court  must  cause  the  issues,  to  the  trial  of  which,  by  a  jury, 
the  party  is  entitled,  to  be  distinctly  and  plainly  stated.  The  sub- 
sequent proceedings  are  the  same,  as  where  questions,  arising  upon 
the  issues,  are  stated  for  trial  by  a  jury,  in  a  case  where  neither 
party  can,  as  of  right,  require  such  a  trial :  except  that  the  find- 
ing of  the  jury,  upon  each  question  so  stated  is  conclusive  in  the 
action,  unless  the  verdict  is  set  aside,  or  a  new  trial  is  granted. 
N.  Y.  Code  Civ.  Pro.  §  970. 


TRIAL    OF    ISSUES.  l8l 

effect  as  the  verdict  of  a  jury  would  have,  and  the  judge 
is  at  Hberty  to  form  his  own  conclusions  of  fact  and  of  law 
upon  the  evidence,  using  the  report  merely  as  advisory.* 
It  is  held,  that  the  court  may  order  the  issue  or  any  ques- 
tion of  fact  to  be  tried  by  a  jury.  This  corresponds  with 
the  old  feigned  issue  in  chancery  ;  the  verdict  of  the  jury  is 
to  assist  the  court.  In  cases  of  a  verdict  by  a  jury,  a 
motion  for  a  new  trial  is  addressed  to  the  discretion  of 
the  court.  It  may  grant  the  motion  for  reasons  which 
would  not  avail  in  a  court  of  law,  and  it  may  deny,  al- 
though there  were  errors  in  point  of  law,  at  the  circuit, 
or  it  may  decree  in  accordance  with  the  verdict,  or  it  may 
disregard  the  verdict  and  decree  against  it.' 

In  New  York,  it  is  settled  that  there  cannot  be  an 
appeal  from  the  decisions  of  the  Court  of  Chancery,  upon 
a  question  addressed  to  its  discretion.'  Where,  under  aa 
order  of  reference  in  apartition  suit  "  to  inquire  and  report," 
the  referee  reports  correct  findings  of  fact  and  erroneous, 
conclusions  of  law  thereon,  upon  the  coming  in  of  the 
report  the  Special  Term  is  not  required  to  send  it  back 
for  corrections,  but  may,  without  exceptions,  or  indepen- 
dent of  them,  draw  the  proper  legal  conclusions  from  the 
facts.'  It  has  been  held  in  the  same  spirit  that  where 
facts  are  so  clearly  stated  as  necessarily  to  involve  a 
particular  consequence,  it  is  for  the  court  to  act  upon  the- 
facts  so  reported.  If  all  the  circumstances  appear  on  the- 
face  of  the  report,  a  question  decided  by  a  master  may  be: 

^  Thurber  v.  Chambers,  4  Hun,  721. 

7  Lansing?/.  Russell,  2  N.  Y.  563. 

8  Fort  V.  Bard,  i    N.  Y.  43,  125.  426,  533.       See   2    N.  Y.    i86  ; 
55  Id.  41  ;  56  Id.  192  ;  66  N.  Y,  42. 

•J  Austin  V.  Ahearne,  61  N.  Y.  6.    See  2  Daniel]  Ch.  Pr.  1314;  6 
Ves.  226  ;  9  Cal.  353. 


1 82  THE    LAW    OF    PARTITION. 

opened  on  further  directions  without  any  exceptions  hav- 
ing been  taken."  It  is  true  that  the  courts  have  made  it 
a  general  rule  that  the  decision  of  a  referee  was  final, 
and  could  only  be  reviewed  on  appeal  at  the  appellate 
court." 

Where  a  party  commences  an  action  for  a  partition, 
and  files  a  notice  oi  lis  pendens,  but  fails  to  proceed  in 
the  action  with  reasonable  dispatch,  a  party  named  as  a 
defendant,  but  who  has  not  been  served  with  summons, 
may  apply  by  petition  to  have  the  plaintiff's  proceedings 
vacated.  ^' 

Where  it  does  not  appear  from  the  face  of  the  com- 
plaint that  another  action  is  pending  for  the  same  cause, 
the  objection  should  be  stated  as  a  defense  in  the  answer, 
otherwise  by  demurrer ;  that  is,  where  it  appears  by  the 
complaint  that  there  is  another  action  pending  between 
the  same  parties  for  the  same  cause,  the  remedy  is  by 
demurrer.  But  when  it  does  not  appear  upon  the  face  of 
the  complaint,  the  objection  should  be  taken  by  answer. 
This  rule  is  applicable  to  a  suit  brought  by  a  defendant 
for  partition,  when  there  has  already  been  an  action 
brought  by  one  of  the  parties  to  the  subsequent  action 
and  is  pending  between  the  same  parties  for  the  same 
cause.  '* 

All  mere  irregularities  in  the  proceedings  may  be 
amended  nunc  pro  tunc.  "     For  instance,  if,   in  bringing  a 

10  Bick  V.  Motly,  2  M.  K.  312  ;  2  Ch.  Pr.  402. 

11  Dana  7^  Howe,  13  N.  Y.  306;  Watson  v.  Scriven,  7  How.  9, 
II  ;  Conolly  z/.  Conolly,  x6  How.  224;  Cheeseborough  v.  Agate, 
26  Barb.  603:  3  Wait  Pr.  321  ;  Danbery  z/.  Coghlan,  I2  Sim.  507  ; 
2  Dan.    Ch.  Pr.  1319  ;  i  Barb.  Ch.  Pr.  560. 

12  Lyle  V.  Smith,  13  How.  Pr.  104,  ante. 

13  Hornfager  v.  Hornfager,  6  How.  Pr.  279. 

14  Bogert  V.  Bogert,  45  Barb.  121. 


TRIAL    OF    ISSUES.  183 

ward  into  court,  or  in  the   proceedings  before  the   court, 
there  has  been  any  irregularity,    that    may  be    cured    by 
subsequent  amendment  under  the  order  of  the  court  hav- 
ing proper  jurisdiction  of  the    party  and   of  the    subject- 
matter.  '•'■     On  a  sale  in    partition,   the   purchaser,   not   a 
tenant  in  common  at  the  commencement  of  the  proceed- 
ings,  cannot   object  to    the    validity  of  the    sale  on   the 
ground  that  he  was  not  made  a  party  to  the  proceedings, 
he    holding   the    deed    of  a    portion  of  the  premises  pur- 
chased pcfidcnte  lite  from  some  of  the  heirs,  defendants  in 
the  partition  suit  ;  especially  where  the  deed  expressed  in 
terms  that  the  deed  was   made  subject    to   the  action  in 
partition.     Any  error  in  stating,  in  such  proceedings,  the 
precise  interest  of   the    parties,   or  the    shares  to    which 
they  were  entitled,  is  quite    immaterial,  because  the  per- 
sons interested,  where  they  are  all  parties  to  the  proceed- 
ings,  are   concluded   by  the  judgment.  '^     The  General 
Term  of  the  Supreme  Court  have  the  power,  on  appeal, 
in  an  action  for  partition,    to  order  the  amendment  of  the 
petition  of  a  committee  or  guardian  of  a  non-resident  in- 
fant lunatic  defendant,  sworn    to    in    another   State,  and 
presented  here  for  the  purpose  of  the  appointment  of  a 
guardian  ad  litem  in   the  action,   to  the  effect    that  such 
infant  lunatic  ward  was  at  the  time  of  verifying  his  origi- 
nal petition,  residing    with  the  committee,  the  petitioner, 
or  under  his    charge    or    custody.     Also,    in  ordering  the 
amendment     of    the  jurat    or   certificate    of  the    judge 
attached  thereto,    stating  the  place  where    such  petition 
was  verified,  and  the  affidavit  taken  ;  and  also  an  amend- 
ment of  the  certificate  of  the  clerk,  so  that  shall,  it  in  addi- 
tion to  its  present  contents,    certify  to   the  existence   of 

i""'  Rogers  v.  McLean,  34  N.  Y.  536. 

16  Noble  V.  Cromwell,  27  How.  289 ;  affirming  6  Abb.  Pr.  59. 


184  THE     LAW    OF    PARTITION. 

the  court,  and  the  genuineness  of  the  signature  of  the 
judge,  which  amendments,  when  made,  shall  be  deemed 
to  be  made  and  filed  nunc  pro  tunc.  This  is  a  more  full 
statement  of  the  decision  in  the  case  of  Rogers  v. 
McLean,  cited  above,  and  decided  by  the  Court  of 
Appeals,  in  June,  1886.  " 

When  the  plaintiff  has  om'tted  to  file  any  of  the 
papers  necessary  to  the  regularity  of  the  judgment,  the 
court  may,  and  in  fact  should  order  them  to  be  filed  nunc 
pro  tiaic}^  The  proceedings  may  be  so  amended  as  to  add 
thereto  the  names  and  bring  therein  the  parties  before 
the  court  that  are  owners,  or  in  such  a  way  interested  in 
the  action,  that  they  are  necessary  parties,  upon  proof 
that  such  persons'  names  were  actually  omitted,  though 
parties  to  the  summons.  "  The  court,  upon  its  own  mo- 
tion, may  correct  palapable  error  in  the  referee's  report  as 
to  the  extent  of  the  interest  of  an  infant  party.""  This 
can  be  done  without  sending  the  report  back  to  the 
referee,  and,  undoubtedly,  the  court  has  the  same  power 
at  Special  Term  to  correct  the  report  of  the  referee  as  to 
the  extent  of  the  interest  of  a  lunatic  or  an  idiot.  The 
mere  variance  in  the  name  of  an  infant  between  the 
complaint  and  petition  for  a  guardian  may  be  disre- 
garded. ^'  It  is  not  necessary  that  a  referee  in  his  report 
of  title  to  proceedings  in  partition  annex  to  his  report  a 
search  for  incumbrances  affecting  the  title.     It  is  sufficient 

17  31  How.  279  ;  34  N.  Y.  536. 

18  Waring  v.  Waring,  7  Abb.  ?r.  473  ;  6  Id.  350 ;  17  N.  Y.  218  ; 
25  Barb.  336:  26  Id.  475  ;  16  Abb.  59;  27  How.  2S9 ;  3  Abb.  Ct. 
App.  Dec.  3S2. 

19  Van  Wyck  v.  Hardy,  11  Abb.  473;  20H0W.  222  ;  39  Id.  392. 

20  Safford  v.  Safford,  7  Paige,  259  ;  Carpenter  v.  Schermer- 
horn,  2  Barb.  Ch.  314. 

-..^    21  Varian  v.  Stevens,  2  Duer,  635,  ante. 


TRIAL    OF    ISSUES.  185 

if  his  report  states  explicitly  that  he  has  caused  the 
necessary  searches  to  be  made,  and  certifies  what  incum- 
brances there  are.  Neither  is  it  necessary  that  the 
referee  should  advertise  for  liens.  -■ 

In  actions  for  the  partition  of  real  estate  the  right  of 
the  plaintiff  to  be  an  owner  should  be  clear  to  warrant 
the  court  to  take  the  custody  of  the  property  out  of  the 
possession  of  those  having  an  apparent  valid  title.  Where 
the  executors  and  trustees  are  vested  with  that  right 
under  a  will,  while  the  claim  of  the  plaintiff,  as  an  heir- 
at-law,  is  doubtful  and  uncertain,  her  motion  for  the 
injunction  and  receiver  pending  her  action  for  partition 
will  be  denied.  Where  application  is  made  in  such  action 
to  remove  the  trustees  on  the  ground  of  incompetence  or 
improvidence,  upon  affidavit  founded  in  a  great  part  upon 
information  and  belief,  which  are  unequivocally  denied  on 
behalf  of  the  trustees,  there  is  no  propriety  in  granting 
the  motion  on  such  a  state  of  the  testimony,  nor  in  try- 
ing such  question  in  the  action  on  conflicting  affidavits."'' 
In  an  action,  brought  for  the  partition  of  certain  real 
estate,  a  judgment  was  entered  directing  that  it  be  sold, 
under  which  it  was  accordingly  advertised  for  sale.  Sub- 
sequently the  plaintiff  applied  to  the  court  for  leave  to 
discontinue  'the  action,  alleging  that  he  was  induced  to 
bring  the  action  by  the  representations  of  his  father,  one 
of  the  defendants  herein,  who  was  tenant  for  life  of  the 
property,  to  the  effect  that  it  was  desirable  to  put  it  in  a 
situation  in  which  it  could  be  sold,  but  that  no  sale  was 
to  be  made  for  the  present  ;  that  the  sale  now  would  be 
prejudicial  to  the  interests  of  those  entitled  in  remainder, 

22  27  How.  289;  26  Barb.  475  ;  6  Abb.  59. 

23  Patterson  v.  McCunn,  46  How.  182, 


1 86  THE    LAW    OF    PARTITION. 

of  whom  he  was  one.  The  court  would  not  allow  the 
action  to  be  discontinued.'*  A  new  trial  will  be  granted 
on  very  slight  grounds." 

Persons  interested  in  the  property,  and  not  made 
parties  to  the  action,  are  not  estopped  by  the  judgment, 
even  though  such  judgment  may  be  rendered  after  a  full 
and  fair  trial  of  the  issues.  All  persons  interested  in  the 
land  should  be  made  defendants,  and  they  and  no  others 
afe  estopped  by  the  decree.''  This  reference  is  to  a 
Texan  decision,  and  is  such  a  careful  review  of  the  law  of 
estoppel  in  partition  cases,  that  it  is  well  worth  the 
examination  of  the  student. 

The  object  and  purpose  of  a  partition  action  is  merely 
a  separation  of  the  share,  or  part  of  one  party,  from  the 
share,  or  part  of  another,  either  by  a  division  of  the  land, 
or  else  by  a  division  of  the  proceeds  from  the  sale  of  the 
land  ;  and  it  does  not  create  title  or  estate  in  any  one  of 
the  parties  to  the  action,  and  the  decree  cannot  create  a 
title  or  estate  different  or  other  than  the  common-law 
title,  had  by  the  co-tenants  previous  to  the  trial.  A 
judgment  in  partition,  in  a  proper  sense,  leaves  the  title 
just  as  it  was."  A  trust  results,  if  at  all,  from  the  origi- 
nal transaction,  at  the  time  it  takes  place  and  at  no  other 
time  ;  and  it  is  founded  on  the  actual  payment  of  money 
and  on  no  other  ground.  A  resulting  trust,  not  within 
the  Statute  of  Frauds  and  which  may  be  shown  by  parol, 
is  when  the  purchase  is  made  with   the  proper  moneys  of 

2*  Furman  v.  Furman,  12  Hun,  441. 

25  Clayton  v.  Yarington,  33  Barb.  144. 

26  I   S.  W.  188. 

27  Goundie  7j.  Northampton  Water  Co.,  7  Barr,  238  ;  Allen  v. 
Hall,  50  Me.  263;  Kane  z/.  Parker,  4  Wis.  123;  10  Id.  320;  11 
Cush.  168. 


TRIAL     OF     ISSUES.  '  187 

the  cestui  que  trust  and  the  deed  is  not  taken  in  his 
name  ;  the  trust  must  have  been  coeval  with  the  writing 
or  deed,  or  it  cannot  exist  at  all.  After  a  party  has  made 
a  purchase  with  his  own  moneys  or  credit,  the  subsequent 
reimbursement  cannot,  by  any  retrospective  effect,  pro- 
duce a  resulting-  trust."'  Where  parties  are  in  possession 
of  land,  the  law  adjudges  the  possession  to  be  in  him  who 
has  the  legal  title  or  best  right. "^ 

Parol  evidence  to  establish  a  resulting  trust  should  be 
clear  and  satisfactory,  direct,  positive,  express  and  un- 
ambiguous.^"  Equity  will  not  consider  the  purchase  to  be 
made  for  the  equal  benefit  of  the  parties,  unless  the 
parties  not  named  in  the  conveyance  can  show,  by  such 
evidence  as  heretofore  stated,  that  he  was  a  party  to  the 
original  purchase  at  the  time  it  was  made,  and  actually 
paid  a  full  share  of  the  purchase  money  before  the  deed 
was  executed  and  delivered.'^  An  allegation  of  a  result- 
ing trust  must  fail,  unless  a  full  share  of  the  consideration 
is  proved  to  have  been  paid.'-  The  action  must  not  be 
destitute  of  equity/'  It  is  not  competent  for  a  tenant  in 
common  to  enforce  partition  as  to  a  part  of  the  common 


28  Edwards  v.  Edwards,  3  Wright,  369 ;  Bayly  v.  Boulcott,  4 
Russ.  445.  See  2  Johns.  Ch.,  405  ;  2  Cox,  92  ;  i  Lead.  Cas.  Eq, 
202  ;  I  Out.  471. 

29  Burns  v.  Swift,  2  Serg.  &  R.  439. 

^^  Lloyd  V.  Carter,  5  Harris,  216  ;  Poorman  v.  Kilgore,  i 
"Wright,  309.     See  10  Casey,  525  ;  4  Out.  118,  336. 

32  Jackman  v.  Ringland,  4  Watts  &  S.  149  ;  Kisler  v.  Kisler, 
2  Watts,  323 ;  Barnard  v.  Jewett,  97  Mass.  87  ;  Edwards  v.  Ed- 
wards, 39  Pa.  St.,  369.     See  56  Id.  119. 

32  McGowan  7/.  McGowan,  14  Gray,  119.  See  15  Wend,  647; 
2  Paige,  217  ;  Reynolds  v.  Morris,  17  Ohio  St.  510;  Perry  v.  Mc- 
Henry,  34  111.  227. 

33  Baker  z/.  Vining,  30  Me.  127;  Dudley  v.  Bachelder,  53  Me. 
408. 


Io6  THE    LAW    OF    PARTITION. 

estate.  He  must  go  for  a  partition  of  the  estate  if  he 
would  divide  any  part.^^  Questions  of  title  may  be  tried ' 
by  a  court,  as  has  been  remarked  in  a  previous  chapter  in 
this  work  ;  but  that  rule  is  not  common  to  all  States. 
Evidence  adduced  of  circumstances  under  which  a  sole 
grantee  in  a  deed  was  reimbursed  by  his  brother  for  half 
the  purchase  money,  held,  sufficient  to  show  that  the 
transaction  created  a  resulting  trust  valid  against  the 
grantee,  and  was  not  a  parol  sale  of  a  half  interest. ^° 

A  tenant  in  fee  simple  of  land,  subject  to  a  life  estate 
in  an  undivided  half,  may  maintain  a  petition  for  partition 
under  the  statute  against  a  tenant  for  life.  There  is  no 
way  in  which  the  value  of  the  widow's  share  can  first  be 
set  off  to  her,  under  this  petition,  without  making  her  a 
party.  It  is  in  the  discretion  of  the  court,  on  her  applica- 
tion, to  allow  her  to  obtain  a  partition,  and  for  the  court 
to  determine  whether  a  case  is  shown  for  the  sale  of  the 
land.  The  petitioner  is  entitled  to  maintain  the  petition 
against  the  widow,  as  well  as  against  the  other  respond- 
ents, for  a  half  share  in  which  he  has  an  estate  in  posses- 
sion, and  the  court  has  authority  under  the  statute  to 
order  the  sale  of  the  land.'"  A  life  estate  is  not  in  the 
nature  of  an  estate  in  dower  unassigned,  which,  while  not 
a  bar  to  partition  among  reversioners  is  not  subject  to 
partition  with  them."  Partition  may  be  had  by  or  against 
a  tenant  for  life.'*      Proceedings  brought  by  a  widow  to 

34  Wash b.  Real  Prop.  447,  §6;  Duncan  v.  Sylvester,  16  Me. 
388;  II  Pick.  311;  52  Me.  25  ;  36  Cal.  116;  12  Me.  145;  13  Pick. 
227;  I  Miles,  168  ;  Freem,  Cot.  §  508. 

35  Ackley  v.  Ackley,  i  Cent.  R.  405. 

36  Allen  V.  Libbey,  i  New  Eng.  R.  73, 

37  Motley  V.  Blake,  12  Mass.  280;  Ward  -v.  Gardner,  112 
Mass.  42. 

38  Mussey  z*.  Sanborn,  15  Mass.  155.  See  9  Allen,  260;  109 
Mass.  181. 


TRIAL     OF     ISSUES.  1 89 

have  her  interest  set  off  in  the  manner  in  which  dower  is 
set  off,  does  not  prevent  her  petitioning  to  have  her  life 
interest  set  off  to  her  by  proceedings  in  partition  ;  her  title 
is  as  absolute  as  if  under  a  devise  for  life  in  all  lands  of 
the  estate.'^  The  rule  that  one  tenant  cannot  have  parti- 
tion as  to  part  of  the  common  property,  does  not  apply 
where  there  is  an  outstanding  life  estate  in  one  parcel,  as 
in  case  of  dower/" 

Between  tenants  in  common  partition  is,  in  equity,  a 
matter  of  right  and  not  of  discretion,  whenever  either  of 
them  will  not  hold  or  use  the  property  in  common.  And 
courts  of  equity  have  concurrent  jurisdiction  with  courts 
of  law  in  such  actions.  To  entitle  a  complainant  to  partition 
he  must  show  a  clear  title  in  himself,  and  in  some  cases 
the  bill  will  be  retained  to  give  him  time  to  establish  it  in 
law  when  it  is  disputed.  When  the  court  in  a  process  in 
equity  has  acquired  jurisdiction  for  the  purpose  of  constru- 
ing a  will,  it  may,  if  there  is  no  defect  in  the  plaintiff's 
title,  do  complete  justice  between  the  parties  by  compel- 
ling an  account  and  partition  when  that  is  asked  for  in 
the  bill/'  A  tenant  in  common  defendant  can  make  no 
objection  to  the  partition  prayed  for,  it  being  a  matter  of 
absolute  right  of  every  tenant  in  common  to  enjoy  his 
share  in  severalty."  It  is  generally  a  fundamental  prin- 
ciple underlying  all  proceedings  for  partition  in  equity, 
that  the  court  will  not  look  beyond  the  legal  title.  If 
that  is  before  it,  it  will  proceed,  unless  there  is  some  con- 
troversy between  the  parties  in  relation  to  it,  when  they 
will  be    turned  over    to  the    court  of  law  to  settle  such 


^^  Sears  v.  Sears,  121  Mass.  267. 

*o  Taylor  v.  Blake,  109  Mass.  514.     See  9  Allen,  260. 
4^  Nash  V-  Simpson,  i  New  Eng.  R.  699,  anie. 
*2  Hanson  v.  Willard,  12  Me.  146. 


I  go  THE    LAW   OF   PARTITION. 

questions.^'  The  power  of  a  court  of  equity  to  grant  parti- 
tion is  not  discretionary."  It  is  a  matter  of  right  between 
the  co-tenants  of  the  property/*  Where  one  tenant  has 
received  more  than  his  share  of  the  rents  and  profits,  an 
accounting  may  be  decreed  and  directed  upon  the  trial  of 
the  issues,  and  reimbursements  had/®  Where  the  defend- 
ant is  in  possession  claiming  to  hold  under  a  will,  and  the 
plaintiff  files  his  bill  under  the  statute  to  have  the  will 
construed  for  accounting  and  partition,  the  court,  in  the 
absence  of  any  defect  in  the  latter's  title,  having  acquired 
jurisdiction  for  the  purpose  of  construing  the  will,  have 
authority  to  do  complete  justice  between  the  parties  by 
compelling  an  account  and  partition/'  The  defendant 
can  raise  the  question  as  a  defense,  that  he  has  the  legal 
title  to  the  premises/*  When  a  court  of  equity  obtains 
jurisdiction  of  the  subject-matter  for  any  purpose,  it  will 
retain  it  for  all  purposes  of  affording  adequate  and  full 
relief  between  the  parties  ;  hence,  where  the  bill  of  the 
complainant  sets  out  facts  necessary  to  obtain  the  order 
of  the  court  for  the  partition  of  the  property,  and  all  the 
parties  interested  in  the  matter  and  who  can  be  affected 
by  the  partition  appear,  and  they  are  the  same  parties 
who  are  solely  interested  in  the  proceedings  and  relief 
asked  upon   the  other  branch  of  the  case,  the  court  may 


43  Gray  v.  Parpart,  io6  U.  S.  689. 

^  Wisely  v.  Findlay,  3  Rand.  361  ;    Burleson  v.  Burleson,  28 
Tex.  383. 

45  Agar  7/.  Fairfax,  17  Ves.  533;  12  Me.  142;  35  Id.  107;  50  Id. 
253  ;  62  Id.  112. 

46  Leach  v.  Beattie,  33  Vt.  195  ;  i  Story  Eq.  §  655. 

47  Scott  V.  Guernsey,  60  Barb.  178;    Dameron  v.  Jameson,  71 
Mo.  100. 

48  Portis  V.  Hill,  14  Tex.  69.      See  28  Id.  383;    106  U.  S.  679; 
100  Id.  564;  102  Id.  647. 


TRIAL    OF    ISSUES.  I9I 

decree  a  partition  of  the  lands."'  It  is  the  more  general 
and  beneficial  rule  of  equity  jurisprudence  that  jurisdiction 
having  once  been  obtained,  it  shall  remain  and  be  effect- 
ual for  the  purpose  of  complete  relief  therefor.  When  a 
suit  is  rightful  in  equity,  and  it  appears  that  the  parties 
before  the  court  are  co-owners  and  entitled  to  a  partition 
of  the  land  of  which  they  are  co-owners,  a  decree  for 
partition  may  be  made  retrospective  of  the  question, 
whether  the  plaintiff  is  seized  or  not/"  Compulsory  parti- 
tion may  be  obtained  in  some  States,  though  a  co-tenant 
be  disseized  of  the  land.  This  rule  was  first  disputed  in 
Massachusetts.^^ 

The  mortgagor  in  possession,  and  before  the  entry  of 
the  mortgagee  for  a  broken  condition  of  the  mortgage, 
has  a  right  to  compel  a  partition.  But  such  partition  is 
only  binding  on  his  interest,  and  cannot  prejudice  or  injure 
the  mortgagee."  The  existence  of  a  vendor's  lien  against 
the  plaintiff  does  not  impair  his  right  to  bring  an  action 
for  the  partition  of  the  premises."  It  is  held  in  Massa- 
chussetts,  or  rather  inferred  by  the  court,  that  the  execu- 
tion of  a  mortgage  by  one  seized  of  a  half  of  the  premises, 
gave  the  mortgagee  a  legal  seizin  and  a  right  of  posses- 
sion, by  virtue  of  which  he  might  maintain  suit  for  the 
partition  of  such  premises.^"  The  court  should  consider 
the  equities  of  all  the  parties  to  the  proceedings,  and  upon 
the  trial  should  pass  upon  the  rights  and  interests    of  all 

49  Wallace  v.  Wallace,  6  Western  R.  113. 

^^  Scott  V.  Guernsey,  60  Barb.  178,  atiie.  See  5  Id.  62  ;  Free- 
man on  Co-ten.  449. 

^1  See  14  Mass.  436;  9  Am.  Dec.  225. 
52  Colton  7/.  Smith,  11    Pick.  311  ;  Call  v.   Barker,  12   Me.  327  ; 
Wotten  V.  Copeland  7  Johns,  Ch.  140. 
5^  Hall  V.  Morris,  13  Bush,  322. 
54  Rich  V.  Lord,  18  Pick.  328. 


192  THE    LAW   OF    PARTITION. 

the  parties  that  are  before  it/^  Such  equities,  as  the 
parties  may  have,  should  be  adjusted,  and  may  be  enforced 
in  a  suit  for  partition,  and  where  such  equities  arise  only 
out  of  the  relation  of  the  parties  in  the  common  property .^^ 
And  if  an  equitable  cause  of  action  is  set  up  in  the  bill, 
for  which  the  court  can  grant  no  relief,  that  of  itself  is 
not  a  sufficient  reason  for  the  dismissal  of  the  bill,  provid- 
ing there  are  other  equities  before  the  court  that  arise  by 
reason  of  the  relation  of  the  parties  as  co-tenants,  or  by 
reason  of  their  relation  to  the  action  by  having  an  equit- 
able right  in  the  common  property."  Common  property 
cannot  be  partitioned  in  fragments  ;  that  is,  it  is  not  the 
practice  of  the  court  to  cause  or  decree  a  partial  parti- 
tion.^" Compensation  for  improvements  on  the  premises 
may  be  allowed,  when  the  equities,  accruing  to  a  co- 
tenant,  are  such  as  to  ordinarily  entitle  him  to  such 
improvements.^^  It  is  the  practice  in  Maine,  if  improve- 
ments are  made  by  a  co-tenant  on  a  part  of  the  estate, 
while  he  was  in  possession,  and  such  improvements  were 
made  by  mutual  consent,  to  assign  to  the  co-tenant  thus 
improving  the  premises  his  share  out  of  the  part  pos- 
sessed and  improved  by  him.  And  if  the  improvements  are 
made  by  him  while  out  of  possession,  he  is  entitled  to 
have  their  value  considered  in  the  partition  of  the  pre- 
mises, and  be   recompensed   for   them.^"     In  Indiana,   no 


55  Packard  v.  King,  3  Col.  211.     See  25  Ohio,  656. 

56  Steward's  Heirs  v.  Colter,  4  Rand.  74;  15  Am.  Dec.   731. 

57  Hoffman   v.  Rice,   25    Mich.    176;    Pigg  v.  Carroll,  89    111. 
207. 

58  Waring  7/.  Wadsworth,  8   N.  C.    345;  62  Me.   112;  54  N,  H. 
441  ;  I  Miles,  167 ;  2  Swan,  199 ;  3  Edw.  Ch.  229. 

59  Green  v.  Putnam,  i  Barb.  500.     See  26  Ind.  105  ;  3  Edw.  Ch. 
323  ;  8  Price,  518;  55  111.  521  ;  11  Tex.  390. 

60  Lord  V.  Lord,  68  Me.  568. 


TRIAL    OF    ISSUES. 


19: 


allowance  will  be  made  out  of  the  proceeds  from  the  sale 
of  the  common  land,  unless  such  improvements  have  been 
necessary  for  the  enjoyment  of  the  estate."  In  Alabama, 
the  claim  for  improvements,  if  allowed,  must  be  inserted 
as  a  counter  demand  to  a  claim  for  rent/'  In  New  York, 
the  rule  seems  to  be  somewhat  different.  Where,  during 
the  existence  of  the  life  estate,  certain  of  the  devisees  of 
the  remainder,  with  full  knowledge  of  the  limited  title  of 
the  tenant  for  life,  and  without  the  consent  of  the  other 
remaindermen,  erected  buildings  upon  the  premises 
devised,  it  was  decided,  that  the  persons  erecting  such 
buildings  were  not  entitled  to  any  compensation  there- 
for, and,  upon  partition,  could  not  exact  a  reimburse- 
ment, from  claim  or  lien  upon,  the  shares  of  their  co-ten- 
ants, but  that  the  rents  by  one  tenant  in  common, 
against  another  could  be  adjusted,  upon  the  trial  of  the: 
issues,  in  a  partition  action." 

The  Statute  of  Limitations  does  not  bar  relief  between 
tenants  in  common  of  the  lands,  in  an  action  of  partition. 
But  a  delay  of  twelve  years  until  after  the  death  of  an- 
ancestor  of  a  party,  who  could  defend  against  the  claim: 
with  a  fuller  knowledge  of  the  facts  than  his  heirs  can  do,, 
operates  against  the  assertion  of  the  claim.  In  an  action 
of  partition,  brought  by  heirs  against  another  heir,  the 
latter  is  not  a  competent  witness  to  prove  that  the  land 
did  not  belong  to  the  ancestor,  but  belonged  to  himself 
individually.'"'     Any  gift    or  conveyance  of  property  by  a 

61  Elred  v.  Keller,  89  Ind.  382 

62  Ormand  v.  Martin,  37  Ala.  606  ;  Horton  v.  Sledge,  29  Ala. 
498. 

c^  Scott  V.  Guernsey,  48  N.   Y.    106.     Contra,  Hoflman,  21  ;  i 

Barb.   500;  2  Caines,  302  ;  i  Gilm.  39;  i  Dana,  170:7  Marsh.    141. 

«*  111.  Rev.  Stat.  ch.  51,  1874;  Comer  z/.  Comer,  6  West,  R.  72. 


194  THE    LAW    OF    PARTITION. 

parent  to  a  child,  or  purchase  in  his  name  or  for  his  use 
or  benefit,  is  presumed  to  be  intended  as  an  advancement/* 
To  claim  a  share  in  the  estate  left,  the  advancement 
must  be  brought  in  for  computation  within  a  reasonable 
time  by  adults,  and  minors  will  be  protected  in  all  actions 
by  the  court.''^  In  a  suit  against  several  defendants 
for  partition,  where  summons  was  personally  served  on 
one  defendant,  and  by  publication  of  notice  on  the  other 
defendants,  they  being  non-residents,  the  court  having 
jurisdiction  of  the  subject-matter  and  acquiring  jurisdiction 
of  the  person  of  the  defendant  personally  served,  and 
deciding,  before  proceeding  v/ith  the  trial,  that  it  had 
acquired  jurisdiction  of  the  non-resident  defendants  by 
the  due  publication  of  notice  of  pendency  of  the  suit,  and 
objection  taken  sixteen  years  after  judgment  therein, 
partitioning  the  land  among  claimants,  based  upon  the 
fact  that  the  affidavit  for  publication  of  notice  of  pen- 
dency of  the  action  was  defective  and  insufficient,  and 
did  not  authorize  publication  of  such  notice,  will  not  pre- 
vail to  prevent  the  record  of  such  suit  from  being  admitted 
in  evidence  in  a  subsequent  suit  for  partition  of  the  same 
lands,  brought  by  the  defendants  in  the  former  suit." 
Void  judgments  are  not  admissible,  in  evidence,  upon  the 
trial  of  issues  for  any  purpose.*"'  Such  a  judgment  should 
be  treated  as  a  nullity,  when  collaterally  attacked.*"^  Un- 
der a  general  issue,  a  former  judgment,  if  proper,  is  admis- 

65  Ray  7'.  Loper.  65    Mo.   472.     See  31    111.   345:  9  Id.  304;    14 
Id.  418. 

66  Sims  V.  Sims,  2  Ala.  118  ;  Gratt  v,  Gratt,  18  111.   lo^ 

67  Carrico  v.  Tarwater,  i  West.  R.  144. 

68  Rhodes  v.  Delaney,  50  Ind.  468  ;  Galpin  v.  Page,  18  Wall.  350. 
See  33  Me.  414  ;  1 3  111.  432  ;  26  N.  H.  233 ;  22  Barb.  271  ;  16  Vt.  246. 
69  Seely  z/.  Reid,  3lowa,  374;    Dick  7/.  Hatch,    10    Iowa,   380; 
Withers  v.  Patterson,  27  Tex.  491.    See  11  Ga.   453;  8  Bush,  284. 


TRIAL    OF    ISSUES.  I95 

sible  as  evidence  upon  the  trial.""     A  proper  judgment  is 
not  subject  to  be  attacked  collaterally." 

For  the  sake  of  convenience,  in  equity  a  recompense 
may  be  made  by  a  sum  of  money  to  one  of  the  parties,  so 
as  to  prevent  injustice  or  unavoidable  inequality ;  or  the 
court  may  order  a  sale  of  the  subject-matter  and  a  divi- 
sion among  the  several  owners  according  to  their  respect- 
ive titles,  as  its  powers  are  adequate  to  full  compensatory 
adjustment.'"  The  court  of  equity,  upon  the  trial  of  issues 
for  the  purpose  of  making  partition  of  a  spring  and  aque- 
duct owned  in  common  by  several  persons,  have  jur- 
isdiction, and  a  sale  of  the  whole  may  be  ordered 
by  the  court,  although  the  right  of  one  of  the  own- 
ers has  become  appurtenant  to  his  other  real  estate." 
This  is  based  upon  the  general  rule  in  equity  that 
between  tenants  in  common  partition  is  a  matter  of 
right  and  not  of  discretion,  whenever  any  one  or  more  of 
them  will  not  hold,  use  and  enjoy  the  property  in  common. 
And  it  is  the  duty  of  a  court  of  equity  to  equitably  divide 
the  property  and  assign  to  each  his  just  and  reasonable 
portion.'^  Upon  the  trial,  if  it  appears  by  proof  before  the 
court  that  the  land  cannot  be  divided  without  injury  to 
the  equitable  interests  of  the  co-tenants  owning  the  land, 
then,  it  is  the  duty  of  the  court  to  direct  a  sale  of  the 
premises  and  a  division  of  the   proceeds,  and  to    pay  the 

'0  I  Greenl.  Ev.  §531  ;  Gavin  v.  Graydon,  41  Ind.  559.  See  70 
Ind.  6  ;  97  Ind.  222. 

'''1  McAlpine  v.  Sweetser,  76  Ind.  78  ;  Helphenstine  v.  Bank,  60 
Ind.  582  ;  Parker  t/,  Wright,  62  Ind.  398. 

'^'^  Pell  V.  Ball,  I  Rich.  Eq.  361.  See  2  Jones  Eq.  334;  Gregory 
V.  Gregory,  69  N.  C.  522;  Royston  v.  Royston,  13  Ga.  425.  See 
27  Cal.  92  ;  26  Ga.  515  ;  8  Bush,  334  ;  32  Md.  57'  ;  3  Head,  15. 

'•*  Allard  v.  Carleton,  i  New  Eng.  R.  853. 

74  Wood  V.  Little,  31  Me.  107;  Allen  v.  Hall,  50  Me.  25;  30 
Amb.  R.  236;  17  Vest.,  533;  T.  A.  Thompson's  Law  Cases,  516. 


196  THE    LAW    OF    PARTITION. 

costs  and  expenses  of  the  litigation.  Where  the  real 
estate  of  which  partition  is  sought  consists  ol  a  mill-dam, 
and  the  lands  overflowed  by  the  mill-pond,  constituting 
the  water-power  which  is  necessary  for  the  use  of  various 
mills  which  belong  in  severalty  to  the  respective  tenants 
in  common  of  such  dam  and  pond,  an  actual  partition  of 
the  water-power  should  be  made,  instead  of  a  sale  thereof, 
if  the  whole  water-power  in  connection  with  the  mill  prop- 
erty held  in  severalty  by  either  party,  would  not  be  worth 
more  than  the  same  water-power  equally  divided,  by  a 
proper  partition  thereof,  the  one  half  to  be  used  by  the 
mills  of  each,  in  the  hands  of  different  proprietors.''*  The 
rule  for  partition  of  alluvion  between  adjoining  owners  is  : 
(i)  Measure  the  whole  extent  of  the  ancient  bank,  and 
compute  how  many  feet  each  riparian  proprietor  owned 
on  the  river  line.  (2)  Divide  the  newly-formed  bank  into 
parts  corresponding  to  the  number  of  rods  or  feet  which 
the  old  line  measured,  and  appropriate  to  each  proprietor 
as  many  portions  of  the  new  river  line  as  he  owned  rods 
or  feet  which  the  old  line  measured,  and  appropriate  to 
such  proprietor  as  many  portions  of  the  new  river  line  as 
he  owned  rods  and  feet  on  the  old.  Then,  to  complete 
the  division,  lines  are  to  be  drawn  from  the  points  at 
wliich  the  proprietors  respectively  bounded  on  the  old  to 
the  points  thus  determined  on  as  the  points  of  division  on 
the  new  shore.  This  rule  may  require  modification, 
according  to  the  circumstances  and  location  of  the  alluv- 
ion owned  in   common,  but  is  a  general  rule  guiding  the 

'''5  Smith  -v.  Smith,  10  Paige,  470;  citing  i  Ves.  &  Beames, 
554;  3  Fairf.  146;  Allnatt  on  Part.  4,78,  87;  8  Ves.  143;  13  Pick. 
236;  I  Aiken,  67  ;  5  N.  H.  134;  14  Wend.  204;  2  Blunt  Amb.  589; 
1  Peer  W  ms.  446 ;  3  Younge  &  Coll.  540. 


TRIAL    OF   ISSUES,  I97 

court  upon  a  trial  and  in  making  its  decree."^  Where  lots 
are  conveyed  with  express  reference  to  a  recorded  plat, 
evidence  to  control,  or  in  any  wayaffect  the  plat,  is  admis- 
sible. Land  gained  from  the  sea  by  alluvion  or  dereliction, 
if  the  same  be  by  little  and  little,  by  small  and  impercepti- 
ble degrees,  belongs  to  the  owner  of  the  land  adjoining.  In 
an  apportioning  to  proprietors  their  respective  shares  of 
alluvial  accretion,  the  whole  length  along  the  shore  of  the 
alluvion  should  be  first  found,  and  then  it  should  be 
divided  among  the  proprietors  of  the  upland  in  proportion 
to  their  share  line." 

The  rule  that  in  equitable  actions  the  court  is  not 
restricted  to  the  mere  remedy  demanded,  but  will  adjust 
all  the  rights  of  the  parties, — applied,  where  an  action  was 
brought  for  partition  of  a  testatrix's  realty  among  her  heirs 
at  law,  and  a  creditor,  who  had  obtained  a  judgment 
against  her  executor  for  services  rendered  testatrix,  was 
made  a  party,  and,  setting  up  these  facts  in  his  answer, 
demanded  that  his  debt  be  paid  out  of  the  sales  of  the 
premises  before  distribution  of  the  proceeds,  and  there 
was  no  personal  estate  to  satisfy  the  debt, — the  court  hold- 
ing that  while  the  judgment  was  no  Hen  upon  the  premises 
or  their  proceeds,  the  testatrix  had  by  the  following 
clause  in  her  will  made  the  debt  a  charge  upon  her  real 
estate  :  "  I  will  and  direct  that  my  just  debts  and  personal 
expenses  shall  be  paid  out  of  my  estate  by  my  said  exec- 
utors, as  soon  as  conveniently  may  be,  after  my  decease."  " 

It  is  a  question  for  the  court  to  determine  whether  a 

""^  Johnston  v.  Jones,  i  Black,  209. 

"^"^  Jones  v.  Johnston,  18  How.  U.  S.  150.  See  Kennedy  v. 
Hunt.  7  How.  U.  S.  586. 

''^'Hibbard  v.  Dayton,  32  Hun.  220,  citing  1  Barb.  509;  55  N. 
Y.  442. 


198  THE    LAW    OF    PARTITION. 

sale  shall  be  ordered  before  any  attempt  at  actual  parti- 
tion has  been  made.  This  is  to  be  determined  from  all  the 
facts  and  circumstances  of  the  case.  For  instance,  where 
the  property  in  question  consisted  of  farming  land  with 
only  one  set  of  buldings  thereon,  and  the  undivided  shares 
of  the  owners  were  respectively  subject  to  mortgage, — Held, 
a  proper  case  in  which  to  decree  a  sale  instead  of  attempt- 
ing actual  partition.'^  The  death  of  a  plaintiff  before  the 
entry  of  the  decree  in  the  partition  suit  cannot  affect  the 
rights  of  the  purchasers  as  far  as  the  action  was  con- 
cerned.*" 

If  the  defendant  does  not  appear  in  the  action,  and  is 
in  default,  there  are,  of  course,  no  issues  to  be  tried  by  the 
court.  But  nevertheless  the  material  facts  set  forth  in 
the  complaint  must  be  proven  to  the  satisfaction  of  the 
court,  or  at  least  a  sufficiency  of  those  material  facts 
must  be  proven,  so  that  the  court  may  order  a  partition 
of  the  land,  or  a  sale  and  a  division  of  the  proceeds.  In 
case  of  default,  the  title  to  the  land  must  be  ascertained 
by  the  court,  or,  where  one  of  the  parties  is  an  infant,  the 
court  must  ascertain  the  rights,  shares  and  interests  of 
the  several  parties  in  the  property,  by  a  reference,  or  by 
having  the  proof  taken  directly  in  court,  before  a  judge 
thereof,  in  special  term,  oefore  an  interlocutory  judgment 
can  be  rendered  in  the  action.  ^ 

When  the  suit  is  commenced  by  summons  and  notice, 
and  the  defendants  do  not   answer  within  the   time  pre- 

79  Odell  V.  Odell,  19  Week.  Dig.  13. 

80  Jordon  v.  Van  Epps.  85  N.  Y.  457. 

d  Where  a  defendant  has  made  default  in  appearing  or  plead- 
ing, or  where  a  party  is  an  infant,  the  court  must  ascertain  the 
rights,  shares  and  interests  of  the  several  parties  in  the  property, 
by  a  reference  or  otherwise,  before  interlocutory  judgment  is 
rendered  in  the  action.     N.  Y.  Code  Civ.  Pro.  §  1545. 


TRIAL    OF    ISSUES. 


199 


scribed  by  the  Code,  it  is  unnecessary  to  enter  an  order 
for  their  default  in  not  so  answering,  because  the  plaint- 
iff is  entitled  to  the  relief  asked  for  in  and  according-  to 
his  notice,  upon  failure  to  answer.  '*  The  entry  of  an 
order  for  default  in  such  a  case  undoubtedly  is  harmless, 
it  being  an  unnecessary  proceeding.  The  summons 
requires  the  defendant  to  answer  within  a  certain  number 
of  days.  The  notice  gives  him  knowledge  of  the  nature 
of  the  action,  and  the  demand  that  will  be  made  upon  the 
court  for  judgment,  inasmuch  as  he  has  been  required  to 
appear  and  has  been  notified  what  judgment  will  betaken 
against  him,  providing  he  does  not  appear.  If  the  court 
require  an  order  of  default  to  be  entered,  it  would  make 
the  summons  and  notice  meaningless  papers  within  the 
eye  of  the  law.  Where  the  defendant  omits  to  answer, 
the  plaintiff  must  exhibit  proof  of  his  title  as  required  by 
the  Revised  Statutes.  '-  The  proof  of  title  may  be  made 
before  a  master,  or  before  a  referee.  "'  The  notice  in 
partition  cases  may  be  similar  to  the  notice  served 
with  the  summons  in  a  foreclosure  case,  in  this  respect  : 
it  may  contain  a  statement  to  the  effect  that  certain 
defendants  named  in  such  statement,  are  in  no  wise 
interested  in  the  proceedings,  in  such  a  manner  that  a 
personal  claim  or  demand  can  be  made  against  them,  and 
that  no  "  personal  claim  is  made  against  them." 

This  rule  is  recognized  in  the  case  of  Variant'.  Stevens, 
heretofore  cited,  and  in  many  other  cases  in  the  books. 
If  the  summons  and  notice  should  be  served  upon  such  a 
defendant,  and  no  notice  that  no  personal  claim  would  be 
made  against  him,  he    would  have  a  right  to  appear  in 

81  Watson  7A  Brigham,  3  How.  290. 

82  Ripple  V.  Gilborn,  8  How.  456. 

83  Larkin  v.  Mann,  2  Paige,  27. 


200  THE    LAW    OF    PARTITION. 

court,    lor   the    express  purpose    of  protecting    himself 
against  any  personal  claim  that   might  be   made,   and  it 
would  be  the  duty  of  the  court,  upon  the  trial,  to  protect 
such  a  defendant  in  his  demands  ;  and,  if  the  proceedings 
were    such    that  it  was  necessary  for  him  to  appear  and 
answer,  or  even  to  appear  for  the  express  purpose  of  pro- 
tecting himself  against  any  injustice  or  improper  demand, 
the  court  would  award  to  him  his  costs  for  such  an  appear- 
ance.    The  statute,  in  substance,  is,  that  if  the  default  of 
any  of  the  defendants,  whether  known  or  unknown,  shall 
have  been    entered,   the  court  shall  require  of  the  peti- 
tioners to  exhibit  proof  of  their  title,  and  an  abstract  of 
the  conveyances  by  which  the   same  is  held.     Such  proof 
may  be  taken  in  open  court,  or  by  the  clerk  thereof,  on  a 
reference  for  that  purpose.  "'     It  is  within  the  province  of 
a  court  of  equity  to  exercise  its  power,  within  its  jurisdic- 
tion, to  prevent  a  failure  of  justice,  and  a  loss  of  the  rights 
of  any  of  the   parties.  '"     In  reporting  upon  a  title,  and 
the  rights  and  interests  of  the  several  parties  to  a  parti- 
tion suit,  the  master  should    require  the   complainant  to 
produce  abstracts  of  title,  as  a  tenant  in  common  in  the 
premises,  and   to  trace   it  back  to  the  common  source  of 
title  of  the    several  tenants  in  common  ;  and  the  master 
in  his  report    should,  as  far  as  is  practicable,  give  an  ab- 
stract of  the  conveyances  of  the  several  undivided  shares 
or  interest  of  the  parties  in  the  premises  from  the  time  the 
several  shares  were  united  in  one   common  source.  '"     A 
purchaser  under  a  partition  sale   by  the  heirs  at  law  is 

84  2  Abb.  Pr.  i6,  and  following  pages.     See  rule  70,  N.  Y.  Sp 
Ct.  Rules. 

85  Gash  V.  Ledbetter,  6  Ired.    185  ;    Wilkinson  v.  Steward,  74 
Ala.  198. 

86  Hamilton  v.  Morris,  7  Paige,  39. 


TRIAL    OF    ISSUES.  201 

not  bound  to  take  an  affidavit  of  the  administrator  or  any- 
other  person,  that  there  are  no  debts  of  the  deceased  :  he 
is  entitled  to  have  the  fact  made  out  beyond  all  reason- 
able doubt  that  there  are  no   debts    or  liabilities    of  any 
kind  of  the  deceased,  for  which  there  is  any  risk  that  the 
property  may  be  sold,  whether   those  debts   are  his  own, 
or  as  surety  or  contingent.     Judgments   and  decrees   do 
not  cease  to  be  a  lien  as  against   heirs  at  law  at  the  end 
often  years  ;  the  parties  to  such  an  action  who  choose  to 
omit  the  ordinary  advertisement  should  produce,  at  their 
own  cost,  regular  searches  for  all  judgments  and  decrees 
for  at  least  twenty  years.     The  advertisement  and  refer- 
ence is  intended  only   as  a  means    for  cutting    off  certain 
liens.     If  there  are  no  liens,  there  is  no  use  of  the  advertise- 
ment ;  and  if  the  parties  to  the  suit  know  there  are  none, 
there  is  no  reason  why  they  should  be  subjected  to  the 
expense  and    delay   of  an    advertisement    and  reference 
that  must  amount   to  nothing.     If  there  are  such  liens  in 
fact,  the  purchaser,  on  examining  his  title,  will    discover 
them,  and  decline  to  take  the  title  until  the  liens  are  dis- 
charged. " 

87  Hall  V.  Partridge,  lo  How.  i88. 


CHAPTER  XIV. 

INTERLOCUTORY   JUDGMENT. 

Interlocutory  is  that  decree  which  is  made  between 
the  commencement  and  the  end  of  a  suit.  Therefore,  an 
interlocutory  judgment  would  be  a  judgment  rendered 
between  the  beginning  and  the  ending  of  an  action.' 
Interlocutory  judgments  are  such  as  are  given  in  the 
middle  of  the  cause  upon  some  plea,  issue,  proceeding,  or 
default,  and  is  only  intermediate  in  its  nature,  and  does 
not  finally  determine  or  complete  the  action.  All  judg- 
ments which  leaves  something  to  be  done  by  the  court, 
prior  to  the  determination  of  the  final  rights  of  the  par- 
ties, and  not  putting  an  end  to  the  suit  or  action  in  which 
it  is  entered,  are  interlocutory.^ 

It  makes  no  difference  whether  the  proceedings  are 
prosecuted  at  law  or  in  equity,  or  what  issues  are  in  the 
proceedings,  or  what  questions  may  be  raised  by  the 
pleadings,  or  whether  there  is  default  upon  the  part  of 
any  or  of  all  the  defendants.  There  are  questions  that 
must  be  settled  by  the  court  before  the  final  ending  of 
the  suit,  because,  in  all  cases  of  this  kind,  the  rights  of  the 
parties  are  before  the  court,  and  the  complainant,  if  in 
good  faith,  is  praying  that  such  rights  may  be  settled.     If 

1  Bouv.  Law  Die.  828. 

2  Blacks.  Com.  396.     See  4  Price,  134;  2  Bouv.  Law  Die.  15. 

[202] 


INTERLOCUTORY    JUDGMENT.  2O3 

not  in  good  faith,  then  it  becomes  necessary  for  the  court 
to  correct  all  errors,  upon  the  part  of  the  complainant, 
whether  arising  from  bad  faith  or  otherwise,  and  make  its 
decree,  which  decree  becomes  part  of  the  records  in  the 
action,  and  a  part  of  the  record  of  the  estate  sought  to  be 
partitioned,  affecting  for  all  time  to  come,  whether  there 
is  an  issue  or  not.  The  moieties  or  shares  of  the  co-ten- 
ants must  be  determined,  the  rights  of  all  occupants,  and 
when  made  parties,  the  position  and  rights  of  all  who 
may  have  liens  upon  the  premises.  This  is  in  the  form  of 
a  decree  of  the  court,  and  is  placed  upon  record  before 
the  division  or  sale  of  the  premises  ;  thus  it  becomes  a 
determination  in  the  action,  and  a  record  made  as  such 
determination  after  the  beginning  and  before  a  final  end- 
ing of  the  action.  Therefore,  it  is  a  judgment  that  is 
interlocutory.^ 

It  is  the  province  of  the  court  to  determine  between 
whom,  and  in  what  proportions,  and  in  what  manner  the 
division  shall  be  made.  If  the  circumstances  are  such 
that  a  division  cannot  be  made  of  the  premises,  without 
injury  to  the  co-owners  thereof,  then  it  becomes  the  pro- 
vince of  the  court  to  direct  a  sale,  and  to  decree  how  that 
sale  shall  be  made,  and  to  direct  a  division  of  the  proceeds 
of  such  sale  in  accordance  with  the  rights  and  equities  of 
the  co-owners  of  the  property.*  In  the  interlocutory 
judgment,  the  court  may  make  such  special  directions  in 
regard  to  the  division  of  the  land,  or  in  regard  to  a  division 
of  the  proceeds,  after  the  sale  of  the  land,  as  the  circum- 
stances of  the  case  may  require.  It  may  become  necessary, 
in  case  one  or  more  of  the  defendant  co-tenants  are  infants, 

3  Emeric  v.  Alvardo,  64  Cal.  529 ;  Booth  Real  Actions,  244. 

4  Freem.  on  Co-ten.  §§  51O,  517  ;  Dan.  Ch.  Pr.  2254  ;  Ham  v. 
Ham,  34  Me.  218. 


204  THE    LAW    OF    PARTITION. 

idiots,  lunatics,  or  adjudged  habitual  drunkards  in  proper 
proceedings  for  that  purpose,  to  make  special  directions 
governing  and  controlling  the  division  of  the  land,  or  the 
division  of  the  proceeds  upon  the  sale  of  the  same  betv-'een 
such  co-tenants,  who  are  thus  mentally  or  morally  dis- 
abled. Section  1546^  of  the  New  York  Code  of  Civil 
Procedure  sets  forth  somewhat  fully  and  concisely  the 
rights  and  duties  of  the  court  in  rendering  an  interlocutory 
judgment  for  partition,  which  law  and  practice  will  be 
found  general  in  some  States  in  the  Union. 

Where  all  the  parties  in  a  partition  suit  are  adults,  and 
have  been  personally  served  with  process,  the  court  does 
not  examine  the  proceedings  to  ascertain  whether  all 
the  proper  parties  are  before  the  court,  or  whether  the 
master  has  stated  their  several  rights  and  interests  in  the 
premises  correctly,  in  his  report.  If  the  necessary  parties 
are  not  before  the  court,  in  a  partition  suit,  so  as  to  make 
the  decree  for  partition  final  and  effectual  as  to  all  persons 
interested  in  the  premises,  the  defendants  who  were  served 
with  process  should  appear  and  make  that  objection.  But 
where  persons  are  proceeded  against,  in  a  partition  suit, 
as  absentees,  or  as  unknown  owners  of  undivided  portions 

•  The  interlocutory  judgment  must  declare  what  is  the  right 
share,  or  interest  of  each  party  in  the  property,  as  far  as  the  same 
has  been  ascertained,  and  must  determine  the  rights  of  the  parties 
therein.  Where  it  is  found,  by  the  verdict,  report,  or  decision,  or 
where  it  appears  to  the  court,  upon  an  application  for  judgment 
in  favor  of  the  plaintiff,  that  the  property,  or  any  part  thereof,  is 
so  circumstanced  that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners,  the  interlocutory  judgment,  except 
as  otherwise  expressly  prescribed  in  this  article,  must  direct  that 
the  property,  or  the  part  thereof  which  is  so  circumstanced,  be 
sold  at  public  auction.  Otherwise,  an  interlocutory  judgment  in 
favor  of  the  plaintiff,  must  direct  that  partition  be  made  between 
the  parties,  according  to  their  respective  rights,  shares,  and 
interests.    N.  Y,  Code  Civ.  Pro.  |  1546. 


INTERLOCUTORY     JUDGMENT.  205 

of  the  premises,  or  where  the  rights  of  infants  are  involved, 
it  is  the  duty  of  the  court  to  look  into  the  proceedings 
and  see  that  the  rights  and  interests  of  such  absentees,  or 
infants,  are  correctly  stated  in  the  master's  report  ;  and 
that  all  proper  persons  are  made  parties,  so  that  the 
decree  will  be  effectual  to  bind  their  rights,  as  between 
such  persons  and  the  absent  or  unknown  owners,  or  the 
infant  defendants.  Where  an  undivided  portion  of  the 
premises,  of  which  partition  is  sought,  has  been  conveyed 
to  a  trustee  upon  a  trust  not  authorized  by  the  Revised 
Statutes,  the  cestui  que  trust  is  a  necessary  party  to  the 
suit,  to  make  the  decree  binding  upon  his  interest  in  the 
premises.  If  the  absolute  title  to  an  undivided  portion  of 
the  premises  is  vested  in  a  trustee,  upon  a  valid  trust,  it 
seems  it  is  not  necessary  to  make  the  cestui  que  trust  a 
party  to  a  partition  suit  in  the  court  of  chancery  ;  but 
that  it  will  be  sufficient  to  bring  the  trustee,  who  has  the 
whole  legal  estate  in  the  premises,  before  a  court. 

Where  one  of  the  tenants  in  common  of  an  undivided 
tract  of  land  pays  the  taxes  upon  his  share  of  the  tract, 
and  a  certain  number  of  acres,  undivided,  are  sold  out  of 
the  whole  tract,  to  pay  the  taxes  upon  the  shares  of  his 
co-tenants,  his  legal  interest  in  the  whole  tract  will  not 
be  diminished  by  such  sale  ;  but  the  sale  will  only  dimin- 
ish the  interests  of  his  co-tenants  in  the  undivided  tract. ^ 
Equity  does  not  act  merely  in  a  ministerial  character,  in 
case  of  a  partition,  and  in  obedience  to  the  call  of  the 
parties  who  have  a  right  to  the  partition,  but,  acting  upon 
its  general  jurisdiction  as  a  court  of  equity,  it  administers 
its  relief  ex  (zquo  et  bono,  according  to  its  own  notions  of 
equity  between   parties."      Where  a  feme  covert  is  intcr- 

^  Braker  T/.  Devereaux,  8  Paige,  513. 
c  Haywood  v.  Judson,  4  Barb.  228. 


206  THE    LAW    OF    PARTITION. 

ested  in  lands  sought  to  be  partitioned  in  the  court  of 
equity,  she  must  be  made  a  party  to  the  bill  (if  within  the 
jurisdiction  of  the  court).''  And  her  rights  or  interest  in 
the  lands  sought  to  be  partitioned  must  be  plainly  set 
forth  in  the  interlocutory  judgment.  In  fact,  all  persons 
having  or  claiming  an  interest  in  the  premises  should  be 
made  parties,  and  their  rights,  claims,  or  interests  should 
be  fixed  in  the  interlocutory  judgment.' 

The  interlocutory  judgment  must  set  forth  the  estate 
of  each  known  owner.  If  any  doubt  arises  on  a  bill  for  a 
partition,  as  to  the  extent  of  the  undivided  rights  and  in- 
terests of  the  parties,  the  usual  course  is  to  direct  a  refer- 
ence to  a  master  to  inquire  and  report  on  them,  as  the 
estate  and  interests  of  the  parties  must  be  ascertained 
before  a  commission  is  awarded  to  make  the  partition. 
But,  where  the  title  is  suspicious,  or  litigated,  it  must  be 
first  established  at  law,  before  a  court  of  equity  will  inter- 
fere. Where  the  plaintiff's  right  to  one  undivided  moiety 
was  admitted  by  all  the  defendants  claiming  the  other 
moiety,  but  they  differed  among  themselves  as  to  their 
titles  and  interests,  some  of  the  defendants  claiming  the 
whole  moiety  in  fee,  and  the  other  claiming  and  enjoying 
such  portions  of  it,  and  asserting  a  freehold  estate  therein, 
the  court  ordered  partition  to  be  made  between  the 
plaintiff  and  all  the  defendants  aggregately  ;  dividing  the 
premises  into  two  equal  moieties,  so  as  to  give  one  moiety 
to  the  plaintiff  in  severalty,  and  leaving  the  other  moiety 
to  be  divided  between  the  defendants,  on  a  further  appli- 
cation to  the  court  when  their  conflicting  claims  should 
be  established  at  law  ;  the  plaintiff,  in  the  meantime,  to 

'i  Graydon  v.  Graydon,  i  McMullan  Eq.  63. 
8  Brookfield  v.  Williams,   i  Green  Ch.  341.     See  3  Sand.  Ch. 
64 ;  3  Edw.  Ch.  323. 


INTERLOCUTORY    JUDGMENT.  207 

pay  his  own  costs  of  suit,  and    the  expenses  of  the  com- 
mission, reserving  the  question  as  to  the  defendant's  pro- 
portion  of  costs,  until  such  further  application."     There 
can  be  no  objection  to  a  statement  in  the  interlocutory 
judgment    that    certain    different     portions   belong   col- 
lectively to  owners  who  are  unknown."     In  one  case,  the 
court  entered  an  interlocutory  judgment  stating  certain 
facts  and  conclusions  of  law,  and  ordering  a  reference  as 
to  interest  and  to  take  an  account  of  rents  received  by  a 
defendant,  reserving  all  question  of  costs  until  the  com- 
ing in  of  the  report.     The  report  was  made,  after  which 
leave  was  given  to  file  a  supplemental  answer,  and  a  new 
reference  was  had  on  the  coming  in  of  the  supplemental 
report.     Trial  was  had  before  the  court,  and  a  judgment 
was   thereafter    entered    without    any  findings   of  fact  or 
conclusions  of  law.     On  motion  to  vacate  this  judgment, 
held,  that  no  other  findings  were  necessary  than  those  first 
made,  as  those  findings  could  have  been  excepted  to,  on 
appeal  from  the  judgment,  and  that  would  bring  them  up." 
The  order  in  proceedings   for  partition,  declaring    the 
rights  of  the   parties   and   appointing   commissioners    to 
make  partition,  is  not  final,  and  an  appeal   from  such  an 
order  cannot  be  sustained."     A  decree  which  provides  for 
a  reference,  and  reserves  further  directions  until  the  com- 
ing in  of  the  report,  so  that  the  cause  must  be  set  down 
again  for   hearing  before  all    parts  of  the   litigation  are 
disposed  of,  is  not  final,  and  therefore  cannot  be  appealed 
from,  to  the  court  of  appeals,  although  it  adjudicates  upon 

8  Phelps  7/.  Green,  3  Johns.   Ch.   302;  citing   17  Ves.   533;    i 
Johns.  Ch.  1 1 1  ;   I  V.  &  B.  557. 

'"  Hyatt  V.  Pugsley,  23  Barb.  285. 

11  Offinger  v.  De  Wolf,  43  N.  Y.  Sup.  144. 

12  Beebe  v.  Griffing,  6  N.  Y.  465. 


208  THE    LAW    OF    PARTITION. 

the  merits  of  the  cause  and  disposes  of  the  question  of 
costs."  An  order,  decree  or  judgment  of  the  court,  which  , 
contains  a  provision  for  a  reference  of  certain  matters, 
and  that  all  further  questions  and  directions  be  reserved, 
is  not  the  final  order  or  judgment  contemplated  by  the 
Code.''  A  decree  which  declares  the  rights  of  the  parties 
merely,  and  directs  an  account  in  conformity  therewith, 
but  reserves  the  consequential  directions  and  the  ques- 
tion of  costs  until  the  coming  in  of  the  master's  report,  is 
not  final,  but  is  interlocutory.'^  Neither  can  the  inter- 
locutory judgment  at  law  or  the  first  decree  in  chancery 
be  created  by  a  direct  appeal.  They  are  not  final.  The 
parties  to  the  action  must  wait  before  appealing  until  the 
final  judgment  shall  have  been  entered.'* 

A  judgment  in  an  action  for  partition  of  lands  held  by 
partners  as  tenants  in  common,  which  directs  a  partition 
by  commissioners  and  charges  a  mortgage  held  by  one 
of  the  partners  covering  the  undivided  interest  of  his 
copartner  upon  the  separate  share  of  the  latter,  is  not, 
where  no  division  has  already  been  made,  a  bar  to  an 
action  for  the  foreclosure  of  a  mortgage."  I'he  reason  of 
this  is  that  the  action  was  conducted  in  subordination  of 
the  rights  of  the  mortgagee  under  the  mortgage  in  suit, 
which  was  not  a  partnership  matter,  but  an  individual 
matter.  The  action  of  partition  was  simply  to  set  apart 
the  interest  of  each  tenant  in  common,  and  to  make  the 

13  Cruger  z/.  Douglas,  2  N,  Y.  571,  See  4  How.  Pr.  78;  9 
Paige,  638  ;  6  How.  203. 

1^  4  How.  Pr.  77. 

15  Johnson  v.  Everitt,  9  Paige,  636.     See  i  Am.  Ch.  Dig.  501. 

1*^  Cook  ?;/.  Knickerbocker,  11  Ind.  230,  Pipkin  v.  Allen,  29 
Mo.  229  ;  Medford  v.  Harrell,  3  Hawks,  41.  See  26  Miss.  501  ;  6 
N.  Y.  465  ;   15  Ind.  10. 

17  Reid  V.  Gardner,  65  N.  Y.  578. 


THE    COMPLAINT.  2O9 

mortgage  a  charge  upon  the  separate  interest  of  the 
mortgagor,  leaving  the  lien  of  the  mortgage  undisturbed 
thereon.  Therefore,  the  action  of  partition,  or  in  other 
words,  the  former  action  and  judgment,  were  not  upon 
the  same  subject-matter." 

A  judgment  in  an  action  of  partition  is  binding  upon 
all  the  parties,  and  an  error  of  the  court  in  determining 
whether  the  case  is  a  proper  one  for  a  partition  or  a  sale 
cannot  be  questioned  collaterally  ;  the  judgment  is  final 
and  conclusive  as  to  all  matters  incident  to  or  essentially 
connected  with  the  subject-matter  of  the  litigation,  which 
the  parties  might  have  litigated  and  had  determined, 
either  as  a  matter  of  claim  or  of  defense.^*  It  is  binding 
upon  all  parties,  though  minors  or  non-residents,  if  the 
court  acquired  jurisdiction  of  them,  and  of  the  subject- 
matter.""  A  judgment  rendered  by  a  court  having  power 
lawfully  conferred  to  deal  with  the  general  subject  in- 
volved in  the  action,  and  having  jurisdiction  of  the  parties,, 
although  against  the  facts  or  without  facts  to  sustain  it,, 
is  not  void  as  rendered  without  jurisdiction,  and  cannot 
be  questioned  collaterally.^'  A  judgment  and  sale  in 
partition  only  concludes  contingent  interests  of  persons 
not  in  being,  when  the  judgment  provides  for  and  pro- 
tects such  interests,  by  substituting  the  fund  derived  from 

18  Tracy  v.  Reed,  4  Blackf.  66;  McKinsey  v.  Anderson,  4 
Dana,  62;  King^'.  Chase,  16  N.  H.  9;  Spooner  v.  Davis,  7  Pick,. 
14;  Arnold  V.  Arnold,  7  Id.  12;  Outran  v.  Morewood,  3  East,  351. 
See  26  Barb.  423;  25  N.  Y.  613. 

19  Jordan  v.  Van  Epps,  13  N.  Y.  Week.  Dig.  7.  See  56  N.  Y» 
226;  58  Id.  176. 

2"  Clemens  z/.  Clemens,  37  N.  Y.  59;  citing  24  How.  183;  36- 
Barb.  88;  24  Pa.  St.  242;  3  N.  Y.  511  ;  5  Id.  184;  34  Barb.  156  ;  33 
N.  Y.  87;  35  Id.  653. 

21  Hunt  V.  Hunt,  72  N.  Y.  217. 

14 


2IO  THE    LAW    OF    PARTITION. 

the  sale  of  the  land  in  place  of  it,  and  preserving  the  fund 
to  the  extent  necessary  to  satisfy  such  interests.^* 

Section  1547  of  the  New  York  Code  of  Civil  Proced- 
ure allows  a  partial  partition.  It  is  true,  as  has  been 
remarked  before  in  this  work,  that  a  partition  cannot  be 
had  in  fragments  ;  that  is,  where  there  are  a  number  of 
co-tenants  whose  estate  or  interest  is  co-equal,  fragment- 
ary partition  would  not  be  allowed.  It  would  not  be 
proper  for  one  tenant  in  common  to  bring  an  action  for 
partition  for  the  only  purpose  of  carving  out  his  individual 
interest  in  the  estate,  at  the  expense  of  the  remainder  of 
his  fellow-tenants  in  common  ;  but  by  section  1547,  above 
referred  to,*"  provision  is  made  for  a  division  of  the  prop- 
erty, where  the  shares  and  portions  of  some  of  the  co-ten- 
ants is  not  or  cannot  be  ascertained,  and  remains   unde- 

22  Monarque  v.  Monarque,  80  N.  Y.  320. 

''  Where  the  right,  share,  and  interest  of  a  party  has  been 
ascertained  and  determined,  and  the  rights,  shares,  or  interests  of 
the  other  parties,  as  between  themselves,  remain  unascertained  or 
undetermined,  an  interlocutory  judgment  for  a  partition,  entered 
as  prescribed  in  the  last  section,  must  direct  a  partition,  as 
between  the  party  whose  share  has  been  so  determined  and  the 
other  parties  to  the  action.  Where  the  rights,  shares,  and  inter- 
ests of  two  or  more  parties  have  been  thus  ascertained  and  deter- 
mined, the  interlocutory  judgment  may  also  direct  the  partition 
among  them  of  a  part  of  the  property,  proportionate  to  their 
aggregate  shares.  In  either  case,  the  court  may,  from  time  to  time, 
as  the  other  rights,  shares,  and  interests  are  ascertained  and  deter- 
mined, render  an  interlocutory  judgment,  directmg  the  partition, 
in  like  manner,  of  the  remainder  of  the  property.  Where  an 
interlocutory  judgment  is  rendered,  in  a  case  specified  in  this  sec- 
tion, the  court  may  direct  the  action  to  be  severed,  and  final 
judgment  to  be  rendered,  with  respect  to  the  portion  of  the  prop- 
erty set  apart  to  the  parties,  whose  rights,  shares,  and  interests 
are  determined,  leaving  the  action  to  proceed  as  against  the  other 
parties,  with  respect  to  the  remainder  of  the  property  ;  and,  if 
necessary,  the  court  may  direct  that  one  of  those  parties  be  sub- 
stituted as  plaintiff.    N.  Y.  Code  Civ,  Pro.  I  1547. 


INTERLOCUTORY     JUDGMENT.  211 

termiricd.  In  such  a  case,  the  interlocutory  judgment 
must  direct  a  partition,  as  between  those  whose  share  has 
been  determined  and  the  other  parties  to  the  action, 
leaving  intact  the  share,  interest  or  estate  of  those  that 
are  undetermined.  And  where  the  shares  and  interests  of 
two  or  more  parties  have  been  ascertained  and  determined, 
the  interlocutory  judgment  may  also  direct  the  partition 
among  them  of  a  part  of  the  property,  proportionate 
to  their  aggregate  shares  ;  and  the  court,  from  time  to 
time,  may  determine  as  the  other  rights,  shares  and 
interests,  and  render  another  and  further  interlocutory 
judgment,  directing  a  partition,  in  like  manner,  of  the 
undetermined  parts  and  portions  of  the  same  property. 
And,  if  the  court  should  deem  it  proper  and  for  the  best 
interests  of  those  who  are  concerned  in  the  action,  the 
court  may  direct  thit  the  action  may  be  severed,  and 
final  judgment  be  rendered  with  respect  to  that  por- 
tion of  the  property  set  apart  to  the  parties,  whose  rights, 
shares  and  interests,  or  in  other  words,  whose  estates  are 
determined,  leaving  the  action  to  proceed  as  against  the 
other  parties,  with  respect  to  the  balance  of  the  property; 
and,  if  necessary,  the  court  may  direct  that  one  of  the 
parties,  whose  share,  or  interest,  or  estate,  is  a  part  of  the 
undetermined  remainder,  may  be  substituted  as  party 
plaintiff. 

Where  land,  of  which  one  undivided  share  is  held  in  fee, 
and  the  other  undivided  share  in  tenancies  for  life  and  in 
remainder,  is  conveyed  in  parcels,  by  successive  deeds,  to 
different  pcrsous,  the  latter  conveyance  expressly  refer- 
ring to  the  former  and  being  subject  thereto,  the  court,  on 
making  partition  between  the  owners  of  the  undivided 
interest,  should  give  effect  to  the  earliest  convey- 
ance in  preference  to  the   latter.     The  principle  of  parti- 


212  THE    LAW    OF    PARTITION. 

tion  is  the  same,  where  a  sale  is  necessary,  as  where 
actual  partition  is  made  ;  and  the  rights  of  the  parties  in 
the  proceedings  of  the  sale  are  the  same  as  in  the  lands. 
This  is  where  the  equities  of  the  case  give  some  of  the 
parties  an  interest  in  specific  parcels,  they  are  entitled  to 
have  the  actual  value  of  such  parcels  ascertained  ;  and  a 
judgment  directing  that  the  value  of  parcels  assigned  on 
account  of  such  equities  shall  be  estimated  at  the  same 
rate  as  the  other  parcels  bring  upon  a  sale,  is  an  error, 
unless  it  appears  by  the  record  that  it  did  not  work 
injustice.-' 

Where  the  plaintiff's  right  to  one  undivided  moiety 
was  admitted  by  all  the  defendants  claiming  the  other 
moiety,  but  they  differed  among  themselves  as  to  their 
titles  and  interests,  some  of  the  defendants  claiming  the 
whole  moiety  in  fee,  and  the  others  claiming  and  enjoying 
separate  portions  of  it,  and  asserting  a  freehold  estate 
therein,  the  court  ordered  partition  to  be  made  between 
-the  plaintiffs  and  all  the  defendants,  aggregately  ;  divid- 
ing the  premises  into  two  equal  moieties,  so  as  to  give 
one  moiety  to  the  plaintiff  in  severalty,  and  leaving  the 
other  moiety  to  be  divided  between  the  defendants,  on  a 
further  application  to  the  court,  when  their  conflicting 
claims  should  have  been  established  at  law  ;  the  plaintiff, 
in  the  meantime,  to  pay  his  own  costs  of  suit,  and  the 
expenses  of  the  commission,  reserving  the  question  as  to 
the  defendant's  proportions  of  costs  until  such  further 
application."^  One  tenant  may  have  his  share  set  off  to 
him,  while  that  of  the  others  is  sold,  if  the  court  is  of 
the  opinion  that  such  a  course  is  for  the  best.'^" 

23  Warfield  v.  Crane,  4  Abb.  Ct.  App.  Dec.  525. 

24  Phelps  V.  Green,  3   Johns.  Ch.  302,  a?iie ;  citing  i    Johns. 
Ch.  Ill  ;  I  V.&  B.  557;  17  Ves.  558. 

25  Haywood  v.  Judson,  4  Barb.  228. 


INTERLOCUTORY    JUDGMENT.  213 

If  the  interlocutory  judgment  makes  provision,  where 
two  or  more  of  the  co-tenants  desire  to  enjoy  their  indi- 
vidual shares  in  common,  that  a  partition  can  be  had, 
leaving  to  them  in  common  their  shares  and  portions  of 
the  property,  and  singling  or  parceling  out  as  to  the 
other  co-tenants  their  respective  shares,  it  is  a  proper  judg- 
ment. Section  1548  of  the  New  York  Code  of  Civil  Pro- 
cedure makes  provision  for  this/  In  deciding  whether  a 
sale  is  necessary  in  a  partition  suit,  the  true  question  for 
the  master  is  whether  the  aggregate  value  of  the  several 
parcels  into  which  the  whole  premises  must  be  divided 
will,  when  distributed  among  the  different  parties  in  sev- 
eralty, be  materially  less  than  the  value  of  the  same  prop- 
erty if  owned  by  one  person.  Where  an  estate  is  actually 
vested  in  a  devisee  who  is  the  natural  object  of  the  testor's 
bounty,  the  court  will  not  favor  a  construction  of  the  will 
which  will  have  the  effect  of  divesting  the  estate."^ 

In  making  partition  of  real  property,  the  commission- 
ers may  assign  a  portion  of  the  premises,  held  in  com- 
mon, to  one  of  the  parties,  charged  with  a  servitude,  or 
easement,  for  the  benefit  of  another  party,  to  whom  a  dis- 
tinct portion  of  the  premises  is  assigned  in  severalty." 
Where  two  or  more  of  the  parties  interested  desire  to 
have  their  shares  set  off   to  them  to  be  enjoyed  in  com- 

'  Where  two  or  more  parties,  to  an  action  for  partition,  make 
it  appear  to  the  court,  that  they  desire  to  enjoy  their  shares 
in  common  with  each  other  the  interlocutory  judgment  may,  in 
the  discretion  of  the  court,  direct  partition  to  be  so  made,  as  to 
set  off  to  them  their  shares  of  the  real  property  partitioned,  with- 
out partition  as  between  themselves,  to  be  held  by  them  in  com- 
mon.    N.  Y,  Code  Civ.  Pro.  §  1548. 

26  Clason  V.  Clason,  6  Paige,  541  ;  affirming  18  Wend.  369  ; 
citing  I  Ves.  Jun.  366;  11  Ves.  497. 

27  Smith  V.  Smith,  10  Paige,  470,  ante.  See  2  Blunt  Amb. 
589  ;  I  Peer  Wms.  446. 


214  THE     LAW    OF     PARTITION. 

mon,  an  order  of  reference  will  be  granted  for  that  purpose. 
And  this  should  be  done  before  a  final  decree  in  partition 
should  be  entered.  ^^  Where  the  interlocutory  judg- 
ment directs  an  actual  partition  of  the  premises,  it  must 
designate  three  proper  and  reputable  owners  of  real 
estate  as  commissioners,  whose  duty  it  is  to  make  the 
partition  as  provided  for  by  law. 

The  section  of  the  New  York  Code  of  Civil  Procedure 
making  provision  for  this  may  be  considered  as  a  part  of, 
or  the  substance  of  section  25,  now  29,  of  the  New  York 
Re\ised  Statutes,  which  provided  that  in  suits  for  the 
partition  of  lands,  tenements  or  hereditaments,  an  actual 
partition  or  sale,  as  the  case  may  require,  may  be  ad- 
judged or  decreed,  wherever  and  as  often  as  the  court  may 
have  ascertained  and  declared  so  many  facts  concerning 
the  rights,  titles  and  interests  of  all  or  any  of  the  parties 
to  such  suit,  that  a  fair  and  just  partition  or  distribution 
of  proceeds  can  be  made  by  assigning  to  any  party  or 
parties  in  severalty,  and  to  any  set  or  sets  of  parties  in 
common,  according  to  the  provisions  of  section  29  above 
referred  to,  and  of  section  30,  the  shares  in  the  premises 
belonging  to  such  parties  and  sets  of  parties  respectively, 
or  of  the  proceeds  of  the  sales  of  the  said  shares  of  such 
parties  and  sets  of  parties  respectively. 

Section  30  is  as  follows  :  "When  it  shall  seem  proper 
to  the  court  that  a  partition  or  sale  should  be  adjudged  or 
decreed  as  in  the  preceding  section  provided,  shares  of 
the  premises  or   proceeds  as  to   which  there  are  conflict- 

28  Northrup  v.  Anderson,  8  How.  351.  See  L.  1847,  ch.  557,  §4. 

•*  Where  the  interlocutory  judgment,  in  an  action  for  partition, 
directs  a  partition,  it  must  designate  three  reputable  and  disin- 
terested freeholders  as  commissioners,  to  make  the  partition  so 
directed.     N.  Y.  Code  Civ.  Pro.  |  1549. 


INTERLOCUTORY    JUDGMENT.  21  5 

ing  claims  not  affecting  other  shares  in  such  premises  or 
proceeds,  may  temporarily,  and  until  the  determination 
of  such  claims,  upon  further  proceedings  had  between  the 
adverse  claimants,  be  assigned  or  set  off  as  in  common  to 
such  adverse  claimants,  with  a  proper  reservation  of  the 
questions  of  right  between  such  claimants."' 

In  making  partition  among  several  tenants  in  common  ', 
of  several  tracts  of  land,  owned  in  the  same  proportions,  ' 
it  is  regular  to  assign  to  any  one  or  each  an  entire  tract. 
The  prosecution  of  two  writs  of  partition,  at  the  same 
time,  and  for  the  same  object,  does  vitiate  the  regular 
proceedings  in  one,  upon  which  partition  is  made.  A 
deputy  sheriff  summoned  for  that  purpose  may  legally  act 
as  one  of  the  commissioners  of  partition  although  he 
should  afterwards  make  the  final  return.™  Land  pur- 
chased with  partnership  funds,  and  title  taken  to  parties. 
One  dies  :  held  that  the  land  was  held  by  tenants  in  com- 
mon, and  the  part  of  the  deceased  descended  to  his  heirs, 
and  being  sold  under  an  order  of  the  court,  the  purchaser 
is  entitled  to  partition." 

A  father  who  acts  as  guardian  ad  litem  for  his  children 
in  a  suit  for  partition  brought  against  them  is  not  thereby 
made  a  party  to  the  suit  so  as  to  be  concluded  by  a  judg- 
ment in  favor  of  the  children,  or  so  as  to  be  estopped  to 
controvert  their  title. ^"  A  decree  in  partition  is  a  public 
record,  and  notice  to  purchasers  of  the  particular  lots 
contained  in  the  shares."  The  judgment  cannot  be  at- 
tacked  collaterally,    or   impeached  by   a  petition    which 

29  See  L.  1847,  ch.  430,  §  2. 

3^  Smith  V.  Barber,  7  Ham.  (Ohio)  118.    See  Chase's  Stat.  1162; 
Lit.  Tenures,  251. 

^1  Green  v.  Graham,  5  Ham.  264. 
^'•^  Terrill  v.  Boulware,  24  Miss.  254. 
•13  Marshall  v.  McLean,  3  Iowa,  363. 


2l6  THE    LAW    OF    PARTITION. 

refers  to  it  as  evidence."  A  decree  of  partition  of  a 
deceased  person's  estate  made  by  the  probate  court  is 
void  ;  if  there  is  no  application  to  the  court  ;  if  guardians 
are  not  appointed  for  minor's  interests  ;  if  notice  is  not 
given  by  the  committee  to  the  persons  interested,  and  the 
fact  certified  in  their  report  ;  and  if  notice  is  not  given  of 
the  proceedings  in  the  probate  court/'  After  an  inter- 
locutory judgment  in  an  action  of  partition,  judgment  will 
not  be  entered  upon  an  award  or  report  of  persons  amica- 
bly chosen  by  the  parties  to  make  partition  or  appraise- 
ment. Parties  cannot  substitute  their  own  contrivance 
for  the  writ  of  inquisition  provided  by  law.^'^  In  one  case 
the  plaintiff  in  a  partition  suit  was  entitled  to  six-sevenths 
of  the  estate,  and  had  the  title-deeds.  It  was  held  that 
the  proper  form  of  decree,  as  to  the  documents  of  title, 
was  for  the  delivery  to  the  defendant  of  such  of  them  as 
relate  exclusively  to  the  land  which  should  be  allotted  to 
him,  and  for  the  retainer  by  the  plaintiff  of  the  rest,  he 
undertaking  to  abide  by  any  order  which  the  court  might 
make  as  to  the  same,  with  liberty  for  either  party  to 
apply." 

A  sale  of  the  property  will  not  be  ordered,  where  the 
rights  of  infants  may  be  prejudiced,  if  there  be  any  mode 
whereby  the  plaintiff  may  be  assigned  a  portion  of  the 
premises,  with  a  charge  of  owelty. ''  Where,  upon  a  petition 
for  partition,  in  which  the  petitioner  alleged  that  he  was 
seized  as  tenant  in  common  with  persons  unknown,    the 


34  Brace  v.  Reid,  3  Iowa,  422. 

35  Brown  v.  Sceggell,  2  Foster  (N.  H.)  548. 

36  Bellas  V.  Dewart,  17  Pa.  St.  85. 

37  Jones  V.  Robinson,  27  Eng.  L.  &   Eq.   477  ;  also  see  28  Eng. 
L.  &  Eq.  127. 

38  Walker  v.  Walker,  3  Abb.  N.  C.   I7. 


INTERLOCUTORY    JUDGMENT.  21  7 

court  ordered  notice  to  be  published  in  a  newspaper  three 
weeks  successively,  and  the  petitioner,  in  proof  of  com- 
pliance with  the  order,  produced  two  successive  papers 
containing  the  notice,  it  was  held  that  the  petitioner  was 
not  entitled  to  partition  against  a  co-tenant,  who  ap- 
peared, and  objected  that  notice  had  not  been  given  to 
other  co-tenants.'^  The  proceeding  in  partition  under 
the  intestate  laws  of  Pennsylvania,  by  which  the  estate 
is  sold  by  order  of  the  Orphans'  Court,  creates  a  lien  upon 
the  land  for  the  unpaid  purchase  money,  independent  of 
a  mortgage  or  any  other  security  which  may  have  been 
taken.  And  such  lien  can  only  be  discharged  by  pay- 
ment to  the  heirs." 

In  North  Carolina,  a  partition  between  co-heirs  under 
an  order  of  the  court  is  not  valid,  unless  the  statute 
is  strictly  complied  with,  and  the  assent  of  the  heirs 
cannot  cure  any  informality. ''  A  division  of  an  estate 
by  order  of  the  probate  court,  by  which  a  share  was 
assigned  to  an  heir,  before  deceased,  is  not  invalid.  " 
The  fact  that  a  defendant  is  in  possession  of  premises, 
claiming  to  hold  them  adversely  to  the  plaintiff,  is,  in 
general,  a  sufficient  ground  for  denying  a  partition  in  a 
court  of  equity.  But  when  the  question  arises  upon  an 
equitable  title,  set  up  by  either  of  the  parties,  the  reason 
of  this  rule  fails."  In  cases  of  partition,  the  court  of 
equity  does  not  act  merely  in  a  ministerial  character,  and 
in  obedience  to  the  call  of  the  parties  who  have  a  right 
to  the  partition,  but,  acting  upon  its  general  jurisdiction 
as  a  court  of  equity,  it   administers  its  relief  ex  cequo  et 

39  Ashley  v.  Brightman,  21  Pick.  285. 

40  Hise  V.  Geiger,  7  Watts  &  Serg.  273. 

41  Anders  v.  Anders,  2  Dev.  529. 

42  Wass  V.  Buckman,  38  Me.  356. 

43  Hosford  V  Mervin,  5  Barb.  Ch.  51. 


2l8  THE    LAW    OF    PARTITION. 

bono^  according  to  its  own  notions  of  equity  between  the 
parties.  "** 

Rents  or  profits  of  premises  sought  to  be  parti- 
tioned, accruing  while  the  land  has  been  held  adversely 
to  the  claim  of  the  complainant,  even  if  such  rents  and 
profits  have  been  secured  by  one  who  is  a  joint  owner  of 
the  premises  with  the  complainant,  are  not  recoverable 
in  the  court  of  chancery,  upon  a  bill  for  partition.  They 
are  more  properly  recoverable  as  mesne  profits,  in  an 
ejectment  suit  brought  for  the  recovery  of  the  possession 
of  the  undivided  shares  of  the  premises  claimed  by  the 
plaintiff  ^''  Where  two  tenants  in  common  of  land  make 
a  parol  partition,  followed  by  long  possession,  one  can- 
not have  partition  of  the  part  occupied  by  the  other  ; 
but  there  must  be  partition  of  the  whole.  ^^ 

A  bill  in  equity  by  a  partner  for  the  partition  of  real 
estate  of  the  firm,  which  does  not  pray  for  an  account, 
cannot  be  maintained  by  the  court  until  all  of  the  part- 
nership accounts  have  been  taken.  ^'  There  cannot  be  a 
partition  of  several  different  tracts  of  land  in  one  action, 
unless  such  several  different  tracts  of  land  are  owned  in 
common  by  the  same  persons.  ^'  If  the  title  should  be 
an  equitable  one,  or  partially  equitable  and  partially 
legal,  the  court  of  equity  may  try  the  title  ;  and  it  may 
do  so  when  the  title  is  of  a  legal  character,  where  a  fair 
and  perfect  trial  at  law  cannot  be  had.  '*     Land  left  by 

4^  Haywood  v.  Judson,  4  Barb.  228. 
45Burhans  v.  Burhans,  2  Barb.  Ch.  398,  ante. 

46  Duncan  v.  Sylvester,  16  Me.  388. 

47  BairdTA  Baird,  i  Dev.  &  Batt.  524. 

48  Kitchen  v.  Sheets,  i  Ind.  138  ;  HunnewellT^.  Taylor,  3  Gray, 
III  ;  Brownell  v.  Bradley,  16  Vt.    105. 

49  Hoffman  v.  Beard,  22  Mich.  59;  Lambert  v.  Blumenthal,  26 
Mo.  471  ;  Obert  v.  Obert,  12  N.  J.  Eq.  423;  Shearer  v.  Winston, 
33  Miss.  149. 


INTERLOCUTORY    JUDGMENT.  2I9 

will  to  two  persons  in  fee,  with  the  condition  that  it  shall 
be  improved  by  them,  is  subject  to  partition  ;  the  division 
of  the  fee  in  no  way  affects  the  right  to  have  it  improved 
in  common/"  And  where  partition  of  land  includes  a 
mill  privilege,  the  land  being  owned  by  two  tenants  in 
common,  the  partition,  being  by  mutual  deeds  of  release, 
reserved  each  one-half  the  mill  privilege  on  said  land, 
with  the  right  of  using  the  same,  the  land  is  divided,  but 
the  parties  yet  remain  tenants  in  common  of  the  mill 
privilege.  "  The  interlocutory  judgment  awarding  the 
partition  must  set  forth  plainly  the  estate  and  interest 
of  each  party  concerned.  "  And  it  shall  direct  the  man- 
ner in  which  the  partition,  or,  if  the  land  is  to  be  sold, 
the  sale  thereof,  in  which  shall  be  made.  " 

Owelty,  decreed  by  the  common  pleas  in  partition 
proceedings  in  equity  and  charged  on  the  land  allotted, 
is  subject  to  the  lien  of  a  mortgage  of  the  undivided 
interests  for  which  it  is  payment  ;  and  the  co-tenant  to 
whom  the  land  is  allotted  must  either  make  application 
to  pay  the  m^oney  into  court  or  else  to  pay  the  mortgage 
debt.  A  release  of  the  land  by  the  mortgagor,  in 
accordance  with  the  decree,  upon  payment  of  the  owelty 
to  him,  does  not  prevent  the  mortgagee  from  recover- 
ing the  mortgage  debt  from  the  co-tenant  to  whom  the 
land  was  allotted.  "  A  decree  awarding  the  premises 
to  one  of  the  heirs,  at  the  appraisement,  divests  the 
title  of  the  other  heirs,  and  of  all  claiming  under  them.  " 

50  Richardson  v.  Merrill,  21  Me.  47, 

51  Bailey  v.  Rust,  15  Me.  440. 

52  Greenway  v.  Sewell,  18  111.  53. 

53  Young  V.  Frost,  i  Md.  377. 

54  Reed  v.   Fidelity  Insurance   Trust  &  Safe   Deposit  Co.,  4 
Central  R.  763. 

55Merklein  v.  Trapnell,  34  Pa.  42, 


CHAPTER  XV. 

COMMISSIONERS. 

When  commissioners  have  been  appointed  as  provided 
by  section  1549,  each  of  these  shall,  before  entering  upon 
the  performance  or  execution  of  his  duties  as  such  com- 
missioner, subscribe  and  take  an  oath,  in  writing,  before 
some  proper  officer  entitled  to  take  oaths  and  affidavits  ; 
which  oath  must  be  filed  with  the  clerk  of  the  court,  before 
the  commissioners  enter  upon  their  duties.'  The  com- 
missioners must  forthwith  proceed  to  make  partition,  as 
directed  by  the  interlocutory  judgment,  unless  it  should 
appear  to  them,  or  a  majority  of  them,  that  a  partition  of 
the  land,  or  of  a  particular  tract  or  portion  of  the  land, 
cannot  be  had,  without  great  prejudice  and  injury  to  the 
owners  ;  and  if  the  commissioners  conclude  that  a  parti- 
tion of  the  whole,  or  of  some  part,  parcel,  or  lot  of  the 

'  Each  of  the  commissioners  must,  before  entering  upon  the 
execution  of  his  duties,  subscribe  and  take  an  oath  before  an 
officer  specified  in  section  842  of  this  act,  to  the  effect  that  he 
will  faithfully,  honestly,  and  impartially  discharge  the  trust 
reposed  in  him.  Each  commissioner's  oath  must  be  filed  with  the 
clerk,  before  he  enters  upon  the  execution  of  his  duties.  The 
court  may,  at  any  time,  remove  either  of  the  commissioners.  If 
either  of  them  dies,  resigns,  neglects  or  refuses  to  serve,  or  is 
removed,  the  court  may,  from  time  to  time,  by  order,  appoint 
another  person  in  his  place.  N.  Y.  Code  Civ.  Pro.  §  1550. 
[220] 


COMMISSIONERS.  221 

land,  cannot    be    had,   without  injury    or  prejudice,  then 
they  must  report  to  the  court,  in  writing,  that  fact." 

The  report  of  commissioners  in  partition  will  not  be 
disturbed,  save  for  cause,  which,  at  law,  will. allow  of  a 
new  trial.  And  such  a  report  will  be  accorded  more 
respect  than  a  verdict,  where  the  commissioners  were 
selected  by  the  parties  in  interest,  and  with  particular 
reference  to  their  qualifications.  In  general,  the  report  of 
commissioners  will  be  confirmed,  unless  they  have  vio- 
lated some  positive  rule  of  law,  or  the  local  interests  of 
the  owners,  tenants,  or  other  parties  interested  in  the 
premises.'  The  report  of  the  commissioners  will  be 
regarded  with  greater  consideration  even  than  a  verdict 
of  a  jury, — that  is,  when  the  commissioners  are  persons 
selected  by  the  parties  themselves  on  account  of  their 
confidence  in  such  parties,  and  of  their  superior  judgment 
and  capability  to  perform  the  particular  service  for  which 
they  are  selected."  The  report  of  commissioners  in  parti- 
tion will  not  be  set  aside  only  on  grounds  similar  to  those 
on  which  a  verdict  would  be  set  aside  and  a  new  trial 
granted.  The  affidavits  of  four  credible  and  disinterested 
persons  for,  to  three  against  the  setting  aside  such  report, 
does  not  carry  such  weight  of  evidence  as  to  authorize 
the  court  to  interfere  to  disturb  the  report.^ 

■"  The  commissioners  must  forthwith  proceed  to  make  parti- 
tion, as  directed  by  the  interlocutory  judgment,  unless  it  appears 
to  them,  or  a  majority  of  them,  that  partition  thereof,  or  of  a  par- 
ticular lot,  tract,  or  other  portion  thereof,  cannot  be  made,  with- 
out great  prejudice  to  the  owners;  in  which  case,  they  must  make 
a  written  report  of  that  fact  to  the  court.  N.  Y.  Code  Civ.  Pro 
§'551- 

1  Matter  of  Pearl  Street,  19  Wend.  651 .  See  14  Edw.  Ch.  597  ; 
32  Cal.  538  ;  45  Jnd.  318  ;  i  Sheld.  410. 

2  Livingstone  v.  Clarkson,  4  Edw.  Ch.  619. 

3  Doubleday  v.  Newton,  9  How.  7  ;  citing  4  Edw.  Ch.  596 ;  19 


22  2  THE    LAW    OF    PARTITION. 

Notice  of  commissioners'  proceedings  in  partition  is 
not  required  by  statute  to  be  given  to  the  parties.  It 
would  be  proper,  however,  that  the  parties  should  have  an 
opportunity  to  be  heard  before  the  commissioners,  before 
making  partition.  There  seems  to  be  a  propriety  in  giv- 
ing the  parties  some  opportunity  of  being  heard  before 
the  commissioners.  No  technical  notice  is  required,  and 
it  has  been  assumed  by  one  learned  judge  that  the  attend- 
ance of  one  of  the  defendants  is  sufficient."  The  necessity 
ofa  notice  to  those  interested  must  be  implied,  and  for 
safety  it  would  be  much  better  that  those  interested 
should  receive  such  a  notice  as  would  convey  the  intel- 
ligence of  what  the  commissioners  are  about  to  do,  for  it 
is  one  of  those  adjudications  of  a  judicial  nature  affecting 
the  rights  and  interests  of  the  parties,  in  which  they  have 
a  right,  in  equity,  at  least,  to  a  substantial  and  beneficial 
notice.  In  Doubleday  v.  Newton,  it  was  held  that  with- 
out a  substantial  and  beneficial  notice,  the  report  of  the 
commissioners  would  be  set  aside.  This  notice,  perhaps, 
need  not  be  a  technical  written  notice,  but  shall  be  such 
a  one  as  will  give  the  person  notified  time  to  be  heard 
and  opportunity  to  oppose.  The  commissioners  in  doing 
their  work  are  to  exercise  a  discretion,  and  to  decide, 
after  inquiring  into  all  the  circumstances  of  the  case;  and 
in  every  proceeding  of  such  a  nature  both  parties  are 
entitled  to  be  heard,  as  a  matter  of  right,  although  the 
statute  may  be  silent  in  making  provision  for  such  hearing  ; 
and  the  courts,  in  the  protection  of  the  interests  of  those 

Wend.  652;  4   Blacks.  Com.   283;  Cowen   &   Hill's  Notes,  998;  6 
Cow.  103;  23  Wend.  632;  15  Johns.  537;  7  Term   R.    364:  8   Vt. 

1^1,  389- 

*  Row  V.  Row,  4  How.  133  ;  referring  to  3  How.  321  ;  4  How. 
83;  Code  Pro.  ^69. 


COMMISSIONERS.  223 

who  are  concerned  in  the  action,  will  often  deem  such  a 
notice  as  not  indispensably  requisite. 

In  the  case  of  the  Commissioners  of  Highways  of  the 
Town  of  Kinderhook  v.  Claw,  cited  in  9  How.  Pr.  74,  as 
authority  whether  a  notice  should  be  given,  as  the  title 
would  indicate,  is  not  an  action  of  partition,  but  the  court 
seemed  to  think  that  the  principle  involved  was  such  a 
principle  of  equity  in  a  judicial  proceeding  that  all  parties 
should  be  heard,  and  though  not  proceedings  in  partition 
are  proceedings  where  the  equities  of  those  interested 
are  similar  to  the  equities  usually  arising  in  partition 
cases,  where  the  commissioners  are  appointed  ;  and  the 
decision  there  was  that  wherever  magistrates  proceed 
judicially,  both  the  parties  to  the  proceedings  are  entitled 
to  be  heard,  and  a  notice  to  both  is  indispensably  requi- 
site, notwithstanding  there  is  no  direction  in  the  act  by 
which  the  tribunal  is  constituted,  that  notice  shall  be 
given.  ^ 

The  commissioners  must  examine  the  premises  ;  they 
must  divide  the  property  into  distinct  parcels,  and  must 
allot  to  the  respective  parties,  all  things  being  taken 
into  consideration,  their  share  and  portion  as  parceled 
out  by  the  commissioners.  The  quality  and  quantity  of 
the  land,  the  improvements  upon  it,  its  location,  and  its 
general  surroundings,  should  be  taken  into  consideration 
in  making  this  allotment.  It  is  the  duty  of  the  commis- 
sioners to  do  justice.  The  allotment  must  be  made  upon 
the  basis  that  equity  is  to  be  done  in  the  division  ;  that 
each  party  is  to  have  as  near  as  i)ossible  his  share  or  por- 
tion of  the  property  in  value.  It  would  be  a  rare  instance 
where  lands    could    be    divided    among  a  number  of  co- 

•''  15  Johns.  536  ;  citing  2  Caines,  179.  See  3  Johns.  474;  5 
Id. 281. 


224  •        THE    LAW    OF    PARTITION. 

tenants  and  the  lands  so  situate  that  each  would  get  an 
equal  quantity,  or  equal  number  of  acres  thereof,  each 
parcel  so  set  off  to  each  co-tenant  being  of  equal  value 
with  the  other  parcels.  Thus,  it  can  readily  be  seen 
that  the  parceling  out  of  the  several  interests  by  the 
commissioners  must  be  based  upon  the  value  of  the  par- 
cels as  to  the  whole  property  in  interest,  as  the  value  is 
the  greatest  element  in  the  case  to  be  deduced,  so  that 
justice  may  be  done  to  all  who  are  concerned.  The  com- 
missioners in  making  the  division  must  designate  the 
several  parcels  by  some  permanent  mark  or  monument, 
so  that  the  division  of  boundary  lines  may  be  known,  and 
the  location  of  each  parcel  may  be  easily  ascertained.  If 
necessary,  the  commissioners  have  power  to  employ  a 
surveyor,  with  such  assistants  as  they  should  need,  to 
aid  them  in  the  performance  of  their  duties.  "^  If  the 
persons  appointed  as  commissioners,  or  any  one  of  them, 
should  die,  resign,  or  neglect  to  serve,  the  court  may 
from  time  to  time  appoint  others  in  their  places,  and  the 
court  may  at  any  time  remove  any  one,  or  all  of  the  com- 
missioners. ^ 

The  statute  does  not  authorize  that  a  portion  of  the 
deceased  owner's  land  may  be  partitioned,  leaving 
the    rest  to  be  partitioned  on    the  death  of  the  widow.  ' 

<=  In  making  the  partition,  the  commissioners  must  divide 
the  property  into  distinct  parcels,  and  allot  the  several  parcels 
thereof  to  the  respective  parties,  quality  and  quanity  being  rela- 
tively considered,  according  to  the  respective  rights  and  interests 
of  the  parties,  as  fixed  by  the  interlocutory  judgment.  They 
must  designate  the  several  parcels  by  posts,  stones,  or  other  per- 
manent monuments.  They  may  employ  a  surveyor,  with  the 
necessary  assistants,  to  aid  them  in  so  doing.  N.  Y.  Code  Civ. 
Pro.  §  1552. 

®  3  Bosw.  439. 

">  Post  V.  Post,  65  Barb.  192. 


COMMISSIONERS.  225 

Actual  partition  as  between  all  the  plaintiffs  on  one  side, 
and  all  the  defendants  entitled  on  the  other,  may  be 
awarded  in  preference  to  a  sale  and  allotment  of  individ- 
ual shares  of  the  proceeds.  '  Where  a  grant  is  made  by 
the  State  to  riparian  owners  upon  an  irregular  water- 
front, of  the  land  under  water  to  a  certain  distance 
from  the  shore,  and  an  apportionment  of  the  land  so 
granted  is  afterwards  made  upon  a  basis  not  strictly  cor- 
rect, and  one  of  such  proprietors  has  made  improve- 
ments, laid  out  streets  and  lots  and  executed  convey- 
ances according  to  such  apportionment,  during  a  less 
period  than  twenty  years,  he  will  be  held  to  have  acqui- 
esced in  such  apportionment  so  far  that  he  cannot  claim 
a  new  partition  upon  technically  correct  principles.  As 
such  acquiescence  does  not  act  merely  as  an  estoppel, 
it  is  not  necessary  that  the  parties  seeking  to  take 
advantage  of  it  should  have  been  induced,  by  the  con- 
duct of  the  parties  acquiescing,  to  make  improvements, 
according  to  such  apportionment.  ' 

The  opinion  in  this  case  was  written  by  Justice  Ed- 
monds, and  he  lays  down  the  following  as  the  rule  for 
dividing  soil  formed  by  alluvion  :  "  The  true  mode  of 
dividing  the  land  under  water  thus  granted  was  tO' 
assume  the  water  line  established  by  these  acts  of  the 
legislature  as  the  base  ;  and  as  it  had  in  it  one  indenta- 
tion,— namely,  that  at  the  extension  of  the  central  line  of 
Harrison-street, — the  true  base  should  be  ascertained  by 
drawing  a  line  between  the  two  extreme  points  of  the 
grant,  in  the  general  direction  there  given,  and  so  as  to 
equalize  the  quantity  of  granted  land  on  both  sides  of  that 

8  Walter  v.  Walter,  3  Abb.  N.  C.  12. 
8  O'Donnell  v.  Kelsey,  10  N.  Y.  412. 


226  THE    LAW    OF    PARTITION. 

line.  Adopting  this  as  a  base,  each  riparian  owner  is  to 
have  his  proportion  of  the  outer  or  water  Hne  according 
to  the  length  of  his  shore  line.  Thus,  as  the  whole  shore 
line  is  to  the  whole  water  line,  so  is  each  one's  share  of  the 
shore  line  to  each  one's  share  of  the  water  line.  .  .  .  The 
doctrine  as  to  lands  formed  by  alluvion  soil  is  settled, 
and  the  following  is  an  old  rule  much  referred  to  :  '  Meas- 
ure the  whole  extent  of  the  line  on  the  river  and  ascer- 
tain how  many  feet  each  proprietor  owned  on  this  line  ; 
divide  the  newly  formed  line  into  equal  parts  and  appro- 
priate to  each  proprietor  as  many  of  these  parts  as  he 
owned  feet  in  the  old  line,  and  then  draw  lines  from  the 
points  at  which  the  proprietors  respectively  bounded  upon 
the  old  to  the  points  thus  determined  as  the  points  of 
division  on  the  newly  formed  line.'  Of  course,  this  rule 
should  be  modified  in  particular  cases,  and  under  particu- 
lar circumstances  ;  for  instance,  if  the  ancient  margin 
has  deep  indentations  or  sharp  projections,  the  general 
available  line  on  the  river  ought  to  be  taken,  and  not 
the  actual  length  of  the  margin  as  thus  elongated  by  the 
indentations."  " 

The  doctrine  of  acquiescence  in  what  has  been  done, 
or  what  is  to  be  done  is  well  recognized  in  law  as  the 
admission  of  a  party.  The  commissioners  in  making  their 
division  and  allotment  are  to  take  into  consideration  the 
acquiescence  of  the  parties  in  what  has  been  done  relative 
to  the  premises,  and  to  the  improvement  of  such  premises 
in  the  past,  and,  also,  to  take  into  consideration  such 
admissions  or  agreements  as  have  been  made  in  relation 
to  the  division    of  the    property  or  improvement    of  the 

10  DeerfieldT/,  Arms,  17  Pick.  41  ;  Sparhawk^'.  Bullard,  i  Mete. 
95  ;  Angell  on  Tide  Waters,  258. 


COMMISSIONERS.  227 

property  in  the  future.  As,  for  instance,  it  may  have  been 
agreed  upon  by  all  the  parties  in  interest  that  some  one 
of  the  CO  tenants  shall  have,  in  case  of  future  division,  set 
apart  to  him  a  certain  parcel  of  land,  and  he,  by  reason  of 
such  agreement  on  the  part  of  his  fellow-co-tenant, 
has  taken  possession  of  the  same,  has  built  upon  it,  or  set 
fruit-trees  upon  the  land,  thus  having  an  equitable 
interest  in  such  particular  parcel  so  improved  by  him, 
greater  than  his  interest  therein  as  a  co-tenant,  and  it 
being  an  interest  that  should  be  considered  by  the  com- 
missioners in  making  their  allotment  ;  and  the  admission 
of  the  other  co-tenants,  or  their  acquiescence  in  the  acts 
of  the  co-tenant  thus  improving  such  parcel,  should 
estop  all  who  are  interested  having  thus  acquiesced,  in 
claiming,  upon  a  division  and  allotment  of  the  land,  that 
the  co-tenant  thus  improving  said  particular  parcel  should 
not  be  allowed  the  benefit  of  the  acquiescence,  admission, 
or  agreement  of  his  fellow-co-tenants.  Such  acquiescence, 
to  have  effect,  must  be  some  act  of  the  mind  and  amount 
to  voluntary  demeanor  or  conduct  of  the  party,  as  it 
may  be  an  acquiescence  in  conduct  as  well  as  acquiescence 
in  language.  Such  conduct  or  language  must  be  fully 
understood  by  the  party  claiming  benefit  under  it,  before 
an  inference  can  be  drawn  from  the  passiveness  or  silence 
of  the  opposite  party."  It  does  not  amount  to  a  reserva- 
tion where  a  benefit  is  given  in  a  deed  to  persons  not 
parties  to  it,  and  having  no  legal  title,  and  where  nothing 
is  reserved  to  the  grantor.  But  there  is  an  intention,  to 
which  the  court  will  give  effect  according  to  the  intent 
which  is  to  be  gathered  from  the  whole  instrument.  He 
who  takes  under   a  deed   must   perform    all    its   express 

"  Greenl.  Ev.  6,  197;  6  Carr.  &  P.    241  ;  9   Cow.  274  ;  i    Hall, 
579 ;  9  Cow.  231  ;  2  Caines,  21 1  ;  8  Wend.  483,  610. 


228  THE    LAW    OF    PARTITION. 

and  implied  conditions.  His  election  precludes  objection 
and  becomes  a  matter  of  estoppel.^*  Where  the  equities 
of  the  case  give  some  of  the  parties  an  interest  in  specific 
parcels,  they  are  entitled  to  have  the  actual  value  of  such 
parcels  ascertained  ;  and  a  judgment  directing  that  the 
value  of  the  parcels  assigned  on  account  of  such  equities, 
shall  be  estimated  at  the  same  rate  as  the  other  parcels 
bring  upon  a  sale,  is  an  error,  unless  it  appears  by  the 
record  that  it  did  not  work  injustice.  The  distribution  of 
the  proceeds  of  a  sale  should  be  according  to  the  actual 
value  of  the  whole  premises,  and  it  is  very  desirable  that, 
in  order  to  save  expense  to  all  parties,  the  decree  should 
be  corrected  without  a  new  trial,  providing  that  the  irreg- 
ularities or  mistakes  in  the  decree  are  such  as  can  be 
so  corrected,  and  if  necessary,  the  corrected  decree  should 
give  new  and  correct  directions  to  the  commissioners." 

Under  the  various  statutes  of  the  United  States,  the 
proceedings  subsequent  to  the  interlocutory  judgment  are 
similar,  and,  in  fact,  nearly  conform  to  the  proceedings 
in  chancery  under  the  common  law  and  the  common  law 
writ  of  partition.  It  is  usual  for  the  court  to  appoint  from 
three  to  five  commisssioners.  In  New  York  State  the 
rule  is  three  commissioners,  sometimes  termed  as  referees, 
and  sometimes  as  partitioners,  whose  duty  it  is  to  divide 
the  property  as  between  the  co-tenants  in  common.  Such 
commissioners  have  no  power  to  determine  questions 
pertaining  to  the  title."  The  commissioners  have  no 
other  work  to  do,  or  act  to  perform,  or  any  authority  to 
do  any  other  act,  than  to  divide  the  estate    according  to 

12  Maynard  v.  Maynard,  4  Edw.  Ch.    711.     See  34   Barb.  567; 
5  N.  Y.  38 ;  21  Wend.  290;  i  Prest.  Shep.  Touch.  80. 

13  4   Abb.  Ct.  App.  Dec.  525. 

1*  Allen  -v.  Hall,  50  Maine,  263.     See  10  Wis.  320, 


COMMISSIONERS.  229 

the  directions  contained  in    the  interlocutory  judgment  ; 
and  they  must  abide  by  the  decree  of  the  court  as  set  forth 
in  such  judgment,  and  must  fulfill  in  every  particular   the 
requirements   of  the  court  rendering  such  judgment,  and 
be  obedient    to  all    its    mandates.'^     The    law  empowers 
them  to  employ,  when    necessary,   a   surveyor   and    such 
persons  skilled  in  the  science  of  surveying  as  may  be  nec- 
essary to  assist    the  surveyor  in  the   performance   of  his 
labors  ;  and  if  unskilled  labor   will    do,    then   it    becomes 
their  duty  as  a  matter  of  economy  to  the  estate  to  employ 
to  assist  the  surveyor  such  unskilled  labor.     The  commis- 
sioners are  not  compelled  to  employ  a  surveyor,  but  they 
are  allowed  to  use  their  discretion  and    supposed  only  to 
employ   such  persons   to  do  that   work   which  they,   as 
commissioners,  are  unable   to   do.     Undoubtedly   in   the 
majority  of  cases  where  actual  partition  is  directed  by  the 
interlocutory  judgment,  it  is  best  for    the  commissioners 
to  employ  to  assist  them  a  skilled  surveyor,  because  they 
are  bound  by  virtue  of  their  appointment,  by  virtue  of  the 
mandate  of  the  court  making  the  interlocutory  judgment, 
and  by  virtue  of  the  fact  that  they  are  to  make   a  proper 
and  just  division  of  the  land,  and  to  do   actual  justice   to 
all  parties  concerned.     And,  while  commissioners  may  be 
able  to  cipher  out  the  amount  that  should  go  to  each,  thee, 
perhaps,  being  unskilled  as  to  measurements  of  land,  can- 
not correctly  lay  out  the  respective  parcels,  by  metes  and 
bounds,  or  place  the    necessary   marks,  stones  or   monu- 
ments, as  required  by  law,  marking  the  respcctiv^e  parcels 
as  they  are  set  apart  and    allotted   to  the   co-tenants   in 
severalty.     It  is  not  wise  for  the  commissioners  to  make 
the  allotment  by  having  recourse  to  chance,  and    usually 

^5  Brown  v.  Bulkley,  11  Cash.  1C8. 


230  THE     LAW    OF    PARTITION. 

they  are  allowed  to  make  such  allotments  without 
^lepending  on  any  chance  to  determine  what  persons 
shall  have  certain  particular  parcels.'^ 

In  some  States,  the  method  preferred  by  chancery  is, 
first,  to  have  the  land  divided  by  the  commissioners  in 
equal  parts,  and  then  the  commissioners  determine  by 
lot  to  what  co-tenant  each  part  shall  be  assigned.  "  Ac- 
cording to  the  old  chancery  practice,  which  is  generally 
followed  at  this  time,  the  proceedings  of  the  commis- 
sioners are  open  and  public,  and  may  be  attended  by 
any,  or  all  of  the  parties  concerned,  their  attorneys  or 
solicitors  ;  and  in  some  instances  witnesses  may  be 
examined  and  cross-examined,  and  such  examination  is 
under  the  control  of  the  commissioners,  and  is  deemed 
necessary  for  the  purpose  of  discovering  the  actual  truth 
in  the  premises.  ^'  The  first  duty  of  the  commissioners 
is  to  divide  the  land  into  as  many  shares  or  parcels  as 
there  are  co-tenants,  or  as  the  decree  directs.  Then, 
they  must  allot  those  parcels  to  the  respective  co-ten- 
ants, taking  into  consideration  all  the  circumstances,  and 
they  must  use  due  care  not  to  be  arbitrary  in  their  allot- 
ment. ^'  So  far  as  they  are  able  to  do  so,  they  should 
assign  to  each  co-tenant  that  part  or  parcel  of  the  land, 
which  will  be  the  most  valuable  to  him  in  the  future, 
taking  into  consideration  all  questions  in  regard  to  im- 
provements both  temporary  and  permanent.  The  assign- 
ment of  the  parcels  should  be  done  in  such  a  manner  as 
not  to  do  an  injustice  to  any  of  the  other  co-tenants.  ^^ 

1*  Cecil  V.  Dorsey,  i    Md.  Ch.  225.     See  Field  v.  Hanscomb, 
3  Shep.  367  ;  23  Ind.  445  ;  15  Gray,  502  ;  i  Root,  69. 
17  Danl.  Ch.  Pr.  11 58,  4th  ed. 
1^  Cecil  v.  Dorsey,  i  Md.  Ch.  226,  ante. 
1'-^  Canning  z^.  Canning,  2  Drewry,  434. 
20  Story  V.  Johnson,  i  Y.  &  C.  Ex.  546. 


COMMISSIONERS.  23 1 

Difficulties  sometimes  will  arise  in  the  division  of 
premises  in  such  a  manner  that  it  will  seem  almost  im- 
possible to  make  a  division,  and  yet  do  justice  to  the 
parties.  In  one  case  it  appeared  that  the  commissioners 
had  set  off  to  one  of  the  parties  one  part  of  the  premises, 
by  metes  and  bounds,  and  another  part  of  the  premises  to 
another  in  the  same  way  ;  the  whole  embraced  two  mills 
upon  the  same  stream,  the  one  below  the  other.  But  in 
their  report,  in  addition  to  the  land  itself  on  which  the 
lower  mill  was  situated,  they  had  given  to  the  party  to 
whom  that  part  of  the  land  was  set  off,  the  easement  or 
right  to  flow  back  the  water  assigned  to  the  other,  in  the 
same  manner  and  to  the  same  extent  that  such  water 
had  been  thus  flowed  back  previous  to  the  partition.  The 
question  there  arose  upon  the  construction  of  the  report 
itself  But  the  decision  of  the  court  recognized  the  prin- 
ciple that  the  commissioners  in  partition  might  assign 
one  part  of  the  premises  to  a  party,  charged  with  a 
servitude  or  easement  for  the  benefit  of  another  party,  to 
whom  a  distinct  portion  of  the  land  was  assigned  by  metes 
and  bounds. "  And  in  a  New  Hampshire  case,  the  commit- 
tee appointed  by  the  court  to  make  partition  of  a  mill-site 
and  mill-privileges,  assigned  to  some  of  the  parties  dis- 
tinct portions  of  the  premises,  by  metes  and  bounds,  with 
the  right  of  taking  from  the  river,  within  the  limits  of 
the  land  assigned  to  them  respectively,  so  much  water 
as  would  flow  through  a  gateway  of  certain  prescribed 
dimensions,  together  with  a  passage  way  or  water- 
course through  other  portions  of  the  premises  not  assigned 
to  them.  And  the  court  sustained  the  report  of  the  com- 
mittee; distinctly  placing  their  decision  upon  the  principle 

21  Hill  V.  Dey,  14  Wend.  204. 


232  THE    LAW    OF    PARTITION. 

of  the  common  law  upon  the  subject.  "  The  English 
rule  was  set  forth  in  an  opinion  given  by  Lord  Hardwicke, 
in  1750,  in  which  such  a  mode  of  making  partition  of 
property,  the  principal  value  of  which  consisted  in  the 
use  of  water,   was  adopted.  "^  ^ 

The  direction  or  determination  by  commissioners  that 
the  portion  set  off  to  a  widow  for  dower  should  be  sold 
on  her  death,  is  of  no  effect,  as  the  court  only  can  make 
such  order.  "  The  commissioners  may,  and  they  should 
take  into  consideration  rights  of  dower,  which  have  not 
been  admeasured,  or  the  interest  of  any  person,  who  has 
an  estate  by  the  curtesy,  for  life,  or  for  years,  in  any  un- 
divided share  of  the  property,  and  the  commissioners 
may,  in  considering  such  rights  of  dower  or  estate,  allot 
to  such  a  party  his  or  her  share  of  the  property,  without 
reference  to  the  duration  of  the  estate.  And  they  may 
dispose  of  the  share,  so  allotted  to  such  party,  among 
those  who  are  entitled  to  the  remainder  or  reversion 
thereof,  the  same  to  be  enjoyed  by  them  only  at  or  after 
the  expiration  and  determination  of  such  right  of  dower 
or  estate  as  tenant  by  curtesy,  for  life,  or  for  years.  Such 
an  allotment  should  only  be  made,  when  in  the  opinion 
of  the  commissioners  it  can  be  done  without  prejudice  or 
injury  to  the  rights  of  the  parties. 

22  Morrill  v.  Morrill,  5  N.  H.  134. 

23  Warren  v.  Baynes,  2  Blunt  Amb.  589.  See  Clarendon  v. 
Hornby,    i   Peer  Wms.  446  ;    Lister  v.   Lister,  3  Y.  &  C.  Ex.  540, 

^  The  following  cases  will  be  of  interest  relative  to  questions 
pertaining  to  the  commissioners  and  their  duties.  11  Cush.  168; 
3  Shep.  367  ;  23  Ind.  445;  15  Gray,  502;  i  Root,  69  ;  102  111.  507; 
I  Peer  Wms.  446  ;  7  H.  118;  35  Me.  102  ;  30  Me.  219;  10  Paige, 
448;  14  Wend.  204,  5  N.  H.  134;  Ark.  Dig.  ed.  1884,^4797,4799; 
32  Me.  137. 

24  Post  V.  Post,  65  Barb.  192,  anie. 

e  Where  a  party   has  a  right  of   dower  in  the  property,  or  a 


COxMMISSIONERS.  233 

All  of  the  commissioners  must  meet  together  in  the 
performance  ofanyof  their  duties  :  but  a  majority  of  them 
may  act,  and  the  acts  of  the  majority  are  binding.  They 
must  make  and  file  a  report  when  they  shall  have  com- 
pleted their  allotments.  This  report  must  show  what  they 
have  done,  and  the  proceedings  had  before  them.  "'  It 
should  contain  a  full,  careful  and  accurate  description  of 
the  parcels  of  land  as  separated  and  divided  out  from  the 
whole,  and  a  statement  to  whom- each  parcel  was  allotted. 
It  must  show  how  the  property  has  been  divided,  and 
that  they  have  obeyed  the  directions  of  the  court  as  set 
forth  in  the  interlocutory  judgment.  This  report  must 
be  in  writing,  and  signed.  It  must  be  acknowledged 
before  some  officer  who  takes  acknowledgments,  in  like 
manner  as  a  deed  or  mortgage  is  acknowledged,  and  filed 
with  the  clerk  of  the  court.  ^      The  commissioners'  report 

part  thereof,  which  has  not  been  admeasured,  or  has  an  estate  by 
the  curtesy,  for  life  or  for  years,  in  an  undivided  share  of  the 
property,  the  commissioners  may  allot  to  that  party  his  or  her 
share  of  the  property,  without  reference  to  the  duration  of  the 
estate.  And  they  may  make  partition  of  the  share,  so  allotted  to 
that  party,  among  the  parties,  who  are  entitled  to  the  remainder 
or  reversion  thereof,  to  be  enjoyed  by  them  upon  the  determina- 
tion of  the  particular  estate,  where,  in  the  opinion  of  the  commis- 
sioners, such  a  partition  can  be  made  without  prejudice  to  the 
rights  of  the  parties.  N.  Y.  Code  Civ.  Pro.  §  1553  ;  N.  Y.  Laws 
1847,  ch.  430;  4  Edm.  614. 
25  32  Me.  137. 
f  All  of  the  commissioners  must  meet  together  in  the  per- 
formance of  any  of  their  duties ;  but  the  acts  of  a  majority  so 
met  are  valid.  They,  or  a  majority  of  them,  must  make  a  full 
report  of  their  proceedings,  under  their  hands,  specifying  therein 
the  manner  in  which  they  have  discharged  their  trust,  describing 
the  property  divided,  and  the  share  or  interest  in  a  share,  allotted 
to  each  party,  with  the  quantity,  courses,  and  distances,  or  other 
particular  description  of  each  share,  and  a  description  of  the 
posts,  stones,  or  other  monuments  ;  and  specifying   the  items  of 


234  THE    LAW    OF    PARTITION. 

should  be  signed  by  all,  and  should  state  that  all  met. 
If  not  signed  by  all,  a  reason  for  the  omission  should  be 
stated. "-'  The  commissioners  shall  specify  in  their  report 
the  manner  in  which  they  executed  their  trust,  and  shall 
give  a  description  of  the  posts,  stones,  or  monuments 
placed  by  them  for  the  designation  of  the  allotted  par- 
cels. " 

The  expenses  of  the  commissioners,  including  the 
expense  of  a  surveyor  and  his  assistant,  when  such  shall 
be  employed,  shall  be  ascertained  and  allowed  by  the 
court  ;  and  the  amount  of  such  expenses,  together  with 
the  fees  allowed  by  law  to  the  commissioners,  shall  be 
paid  by  the  petitioners,  and  shall  be  allowed  to  them  as 
part  of  the  costs  to  be  taxed.^  A  commissioner  cannot 
maintain  a  suit  for  his  fees,  or  compensation,  till  taxed 
by  the  court.  The  fees  must  be  determined  by  the  court. ^' 
On  a  motion  to  adjust  the  fees  and  disbursements 
of  the  commissioners,  the  number  of  days'  service 
actually  and  necessarily  rendered  by  each  commis- 
sioner, and  the  actual  disbursements  made  by  them, 
must  be  shown  by  affidavit."^  Each  commissioner  is 
entitled  to  compensation  at  the  rate  of  two  dollars 
per  day  only  for  the  time  he  was  actually  and   neces- 

their  charges.  Their  report  must  be  acknowledged  or  proved, 
and  certified,  in  like  manner  as  a  deed  to  be  recorded,  and  must 
be  filed  in  the  office  of  the  clerk.     N.  Y.  Code  Civ.  Pro.  §  1554. 

26  Underhill?/.  Jackson,  i  Barb.  Ch.  73. 

27  See  44  Barb.  372. 

s  The  fees  and  expenses  of  the  commissioners,  including  the 
expense  of  a  surveyor,  when  it  is  made,  must  be  taxed  under  the 
direction  of  the  court ;  and  the  amount  thereof  must  be  paid  by 
the  plamtifT,  and  allowed  as  part  of  his  costs.  N.  Y.  Code  Civ. 
Pro.  §1555. 

28  Smyth  V.  Bradstreet,  5  Cow.  213.  See  15  Johns.  482;  16  Id. 
40;  I  East,  497 ;  2  Binn.  138;  9  Johns.  114;  i  Chitty  PI.  10. 

29  Campbell  2/.  Campbell,  48  How.  Pr.  255. 


COMMISSIONERS.  235 

sarily  employed  in  the  duties  of  his  office.  The  affidavits 
used  on  a  motion  to  adjust  the  fees  and  expenses  of  com- 
missioners must  show,  in  detail,  the  number  of  day's 
service  actually  and  necessarily  performed  by  each  com- 
missioner, and,  also,  the  actual  disbursements  made  by 
the  commissioners,  together  with  the  necessity  ofincurring 
them.  It  seems  that  the  general  view  was,  that  the 
fees  of  the  commissioners  should  be  two  dollars  per  day 
for  each  and  every  day's  actual  and  necessary  service. 
Each  surveyor,  employed  by  the  commissioners,  as  pre- 
scribed by  law,  is  entitled  to  five  dollars,  for  each  day 
actually  and  necessarily  occupied  in  the  surveying,  laying 
out,  marking,  or  mapping  land,  by  virtue  of  such  employ- 
ment ;  and  each  assistant,  so  employed,  is  entitled  to  two 
dollars  for  each  day  actually  and  necessarily  occupied*  in 
surveying  under  the  surveyor's  direction  as  aforesaid ;  and 
each  commissioner,  appointed  by  virtue  of  the  New  York 
Code  of  Civil  Procedure,  to  make  partition  or  admeasure 
dower,  is  entitled  to  five  dollars  per  day  for  each  day's 
actual  and  necessary  service.*^  This,  it  seems,  would 
differ  somewhat  from  the  opinion  given  by  Justice  Law- 
rence in  the  case  of  Campbell  V.  Campbell,  above  cited, 
wherein  he  says  :  "No  greater  sum  can  be  allowed  to  the 
commissioners  than  two  dollars  for  each  and  every  day's 
actual    and    necessary  service."      The  opinion  of  Judge 

*■  A  surveyor,  employed  as  prescribed  by  law,  in  an  action  for 
partition  or  dower,  or  to  determine  dower,  is  entitled  to  five 
dollars  for  each  day,  actually  and  necessarily  occupied  in  survey- 
ing, laying  out,  marking,  or  mapping  land  therem.  Each  assist- 
ant, so  employed,  is  entitled  to  two  dollars  for  each  day,  actually 
and  necessarily  occupied  in  serving  under  the  surveyor's  direc- 
tion. Each  commissioner,  appointed  as  prescribed  by  law,  to 
make  partition  or  admeasure  dower,  is  entitled  to  five  dollars  for 
each  day's  actual  and  necessary  service.    Code  Civ.  Pro.  ^  3299. 


236  THE    LAW    OF    PARTITION. 

Lawrence  is  not  based  upon  the  Code  of  Civil  Procedure, 
but  upon  the  general  custom  and  usage  that  governed 
previous  to  the  adoption  of  the  Code. 

The  report  of  the  commissioners  must  be  brought  into 
court,  and  the  court  must  confirm  or  set  aside  the  same.' 
On  good  cause  shown,  the  court  must  set  aside  the  report, 
and  appoint  new  commissioners  as  often  as  it  may  be 
necessary,  who  shall  proceed  in  like  manner  as  above 
directed.  The  new  commissioners  shall  be  governed  and 
controlled  by  the  interlocutory  judgment  the  same  as  the 
commissioners  appointed  by  that  judgment,  their  duties 
and  responsibilities  being  the  same.  The  report  of  the 
commission  is  not  final.  It  may  be  set  aside  by  the 
court.^'  Confirmation  of  the  report  will  be  denied,  as  a 
matter  of  course,  when  it  is  shown  to  the  court  that  the 
commissioners  were  unfair  in  making  their  allotments  and 
in  the  performance  of  their  duties,  by  virtue  of  the  trust 
reposed  in  them,  or  where  fraud  has  been  exercised  upon 
the  part  of  any  one  or  more  of  the  commissioners,  and 
favoritism  shown  to  one  or  more  of  the  co-tenants,  thus 
injuring  the  other  co-tenants.  It  is  the  duty  of  the  com- 
missioners, when  they  are  in  doubt  as  to  their  duties  and 
desire  information,  to  apply  to  the  court  for  its  instruc- 
tion.^" If  the  court  erroneously  refuse  to  sustain  excep- 
tions to  a  report,  the  remedy  is  not  by  motion  for  a  new 
trial,  but  by  reserving  an  exception  to  the  refusal  of  the 
court  to  set  aside  the  report.'^ 

'  The  court  must  confirm  or  set  aside  the  report,  and  may,  if 
necessary,  appoint  new  commissioners,  who  must  proceed  as 
directed  in  this  article.     N.  Y.  Code  Civ.  Pro.  §  1556. 

29  Freem.  on  Co-ten.  §  525  ;  Rev.  Code  of  Ala.  |  3115  ;  Rev. 
Code  of  Miss.  §  1821. 

30  McLaughlin  v.  Circuit  Judge,  23  N.  W.  R.  472. 

31  Freem.  on  Co-ten.  §  526. 


CHAPTEE  XVI. 


RECEIVER   IN   PARTITION. 


A  RECEIVER  will  be  appointed  before  final  judgment, 
on  the  application  of  a  party  in  interest  who  establishes 
an  apparent  right  to  the  property,  or  a  portion  of  it,  or  an 
interest  in  it,  and  where  the  property  is  in  the  possession 
of  the  adverse  party,  and  there  is  danger  that  it  will  be 
removed  beyond  the  jurisdiction  of  the  court,  destroyed, 
lost,  or  materially  injured,  or  if  it  should  be  that  kind  of 
property  which  of  itself  renders  an  income  or  revenue, 
then  the  court  will  appoint  a  receiver,  for  the  purpose  of 
governing  and  controlling  that  income  or  revenue,  and 
keeping  it  safe  until  the  final  result  of  the  action.  After 
final  judgment,  a  receiver  may  also  be  appointed  to  carry 
into  effect  the  judgment,  or  to  care  for  and  protect  the 
property,  or  the  rents,  issues,  income,  or  profits  of  the 
property  until  the  final  judgment  shall  have  been  fully 
carried  into  effect.^ 

A  receiver  will  be  appointed  where  the  defendant  or  a 
defendant  in  the  action  has  absconded  and  left  the  State, 
for  the  purpose  of  avoiding  the  service  of  the  summons 
upon  him.-  This  would  especially  be  so  where  one  ab- 
sconded abandoning  the  real  property,  as  it  would  be 

IN.  Y.  Code  Civ.  Pro.  §713. 
2  People  V.  Norton,  i  Paige,  17. 
[237] 


238  THE    LAW    OF    PARTITION. 

necessary  that  some  person  should  take  possession  of  the 
real  property,  in  trust,  for  those  who  are  the  tenants  in 
common,  that  the  products,  rents  and  profits  of  such  land 
may  be  protected.  The  receiver  is  appointed  in  order  to 
preserve  the  property  from  serious  loss.^  The  appoint- 
ment of  the  receiver  is  generally  of  the  rents  and  profits 
of  the  real  estate,  and  where  a  receiver  was  appointed 
of  the  rents  and  profits  as  aforesaid,  a  part  of  which 
rents  and  profits  was  not  in  controversy  in  the.  suit 
in  which  the  receiver  was  appointed,  but  belonged  to 
a  third  person,  not  a  party  to  the  suit,  in  right  of 
his  wife,  and  upon  the  application  of  the  husband  for 
the  payment  of  that  part  of  the  fund  to  him,  the  wife 
came  in  and  claimed  it,  on  the  ground  that  her 
husband  had  violated  the  marriage  contract,  and  that 
she  had  filed  a  bill  for  divorce  and  for  a  restoration  of 
her  property  acquired  by  the  marriage  ;  the  court  refused 
to  decide  the  question  between  the  husband  and  wife 
upon  that  application  ;  but  the  shares  of  the  rents  and 
profits  belonging  to  them  were  directed  to  be  paid  into 
court  by  the  receiver,  to  the  credit  of  the  suit  between 
the  husband  and  wife,  to  abide  such  order  or  decree  as 
should  be  made  in  that  suit  respecting  the  same.  Al- 
though the  Court  of  Chancery  will  not  permit  the  pos- 
session of  its  receiver  to  be  disturbed  by  a  third  person 
who  is  not  a  party  to  the  suit,  it  will,  upon  the  applica- 
tion of  such  third  person,  give  such  directions  to  the 
receiver  relative  to  his  trust  as  may  be  necessary  to  pro- 
tect the  rights  of  such  third  person.* 

In    an    action  brought  to   obtain    partition,    where  a 

3  Pignolet  V.  Bushe,  28  How.  9  ;  Stillwell  v.  Watkins,  i  Jacob, 
280. 

*  Vincent  v.  Parker,  7  Paige,  65.     See  34  Barb.  553. 


RECEIVER.  239 

receiver,  pending  the  litigation,  was  appointed,  with 
directions  to  collect  the  rents  and  divide  the  net  pro- 
ceeds thereof  between  the  plaintiff  and  defendant.  There- 
after one  Man,  having  recovered  a  judgment  against  the 
defendant  upon  which  an  execution  had  been  issued  and 
returned  unsatisfied,  applied  for  an  order,  directing  the 
receiver  to  pay  the  amount  due  on  the  judgment  to 
him,  from  the  defendant's  share  of  the  rents.  This 
application  was  denied,  and  the  court  held  that  the 
remedy  of  the  judgment  creditor  was  to  come  into 
the  action  and  press  it  to  a  judgment,  after  which 
his  claim  might  be  paid  from  the  proceeds  of  the 
sale  of  the  premises,  or,  if  an  actual  partition  was  decreed, 
the  share  set  off  to  the  judgment  debtor  might  be  sold.* 
Where,  in  an  action  to  set  aside  conveyances  of  real 
estate  as  obtained  by  fraud,  an  interlocutory  judgment 
having  been  rendered  determining  the  title  to  be  in 
plaintiff,  subject  to  certain  liens  of  defendant,  and  direct- 
ing an  accounting,  and  where,  by  consent,  a  receiver  has 
been  appointed  to  receive  the  rents  during  the  account- 
ing, it  is  within  the  discretion  of  the  court  to  order  the 
receiver  to  pay  over  the  rents  collected  to  the  plaintiff 
upon  such  terms  as  it  may  deem  proper." 

Where,  in  a  partition  suit,  one  of  the  parties  in  inter- 
est has  in  his  possession  a  portion  of  the  estate,  and  has 
been  in  the  habit  of  collecting  the  rents  or  receiving  the 
profits  of  such  estate,  and  as  he  alleges  the  collection  of 
such  rents  and  the  receipt  of  such  profits  by  him  was  for 
the  protection  of  the  income  from  waste,  a  receiver 
should  not  be  appointed  upon  affidavit,  upon  information 

s  Verplanck  7/.  Vcrplanck,  22  Hun,  104;  citing  7  Paige,  65  ; 
28  How.  Pr.  9. 

c  Piatt  7/.  Piatt,  66  N.  Y.  360.  See  52  N.  Y.  583;  2  Dan.  Ch. 
Pr.  1777. 


240  THE    LAW    OF    PARTITION. 

and  belief,  that  such  party  is  of  little  or  of  no  responsi- 
bility. There  is  nothing  in  such  an  affidavit,  and  no 
facts  presented  to  the  court  that  warrant  the  conclusion 
that  a  receiver  is  necessary  for  the  protection  of  the 
income  from  waste.  The.  defendant,  as  tenant  in  com- 
mon, was  entitled  to  the  possession  of  the  premises  the 
same  as  the  other  tenants  in  common,  and  he  is  liable 
upon  the  settlement  of  the  estate  to  his  fellow  co-ten- 
ants, and  must  account  for  his  possession  of  the  property, 
and  for  the  rents  and  profits  received  by  him.  Therefore, 
something  more  than  an  allegation  is  needed,  upon  infor- 
mation and  belief,  that  such  a  party  is  of  little  or  no 
responsibility.'  If  one  tenant  in  common  oust  his  co- 
tenant  and  use  the  whole  property,  accompanied  by  an 
exclusion,  refusing  his  co-tenants  any  use  of  the  premises, 
an  account  will  be  decreed,  and,  if  need  be,  a  receiver 
will  be  appointed,  whether  the  action  brought  be  in  the 
nature  of  an  ejectment  or  partition.' 

~  In  an  action  for  partition,  where  one  of  the  co-owners 
is  in  occupation,  though  not  in  exclusive  occupation,  of 
the  property,  the  court  has  jurisdiction  to  appoint  a 
receiver  until  the  hearing.' 

A  receiver  may  be  defined  to  be  an  indifferent  person 
between  the  parties,  appointed  by  the  court  to  take  pos- 
session of  the  property  which  is  the  subject  of  litigation, 
and  to  hold  the  same  and  apply  the  profits,  or  to  dispose 
of  the  property  itself  under  the  direction   of  the  court, 

7  Dargin  v.  Wells,  13  N.  Y.  Week.  Dig.  51. 

8  Isreal  ?7.  Isreal,  13  Md.  120.  See  i  Barb.  58;  5  Madd.  223; 
II  N.J.  Eq.  403 ;  28  Iowa,  501  ;  i  Mctc.  459  ;  1 5  Grant,  247  ;  20  Id. 
221;  21  Mo.  428  ;  15  Fla.  424;  14  Ga.  429;  44  Vt.  336;  30  Mich. 
237  ;  12  Upper  Can.  L.  Jour.  203. 

9  Porter  v.  Lopes,  23  Moak  Eng.  631  ;  citing  30  Beav.  109;  33 
Id.  401. 


RECEIVER.  241 

when  it  does  not  seem  reasonable  to  the  court  that  either 
party  should  do  it,  or  where  a  party  is  incompetent, — as 
in  the  case  of  an  infant.'* 

The  appointment  of  a  receiver  is  usually  made  to  pre- 
vent fraud,  to  protect  the  property  from  injury,  or  preserve 
it  from  destruction.-'  A  receiver  will  be  appointed,  when 
it  becomes  necessary,  at  the  commencement  of  a  suit,  or 
at  any  time  during  its  pendency,  or  even  after  some 
decree  or  judgment  has  been  made.'"  A  receiver  may  be 
appointed  of  the  rents  and  profits  of  real  estate,  and  of 
such  personal  property  as  may  be  involved  in  the  action." 
A  tenant  in  common  may  have  a  receiver  appointed  of 
the  property  held  in  common,  upon  showing  to  the  court 
that  his  co-tenants  are  insolvent,  that  they  are  in  posses- 
sion, and  are  excluding  him  from  receiving  any  portion 
of  the  rents  and  profits,  or  from  enjoying  the  premises,  or 
any  part  of  them.'*  The  court  may,  in  its  discretion, 
order  the  tenant  in  possession,  who  has  been  receiving 
the  rents  and  profits,  to  give  security  for  the  payment  of 
the  due  proportion  of  such  rents  and  profits  belonging  to 
his  fellow  co-tenants.'^  A  receiver  will  not  be  appointed 
in  an  action  between  co-tenants,  except  in  case  of  waste 
or  exclusion.'^  It  is  an  exclusion,  and  a  reason  for  the 
appointment  of  a  receiver,  when   the  co-tenant  in  pos- 

10  Bur.  L.  Diet.;  Danl.  Ch.  Pr.  1552;  5  Wait  Act.  &  D.  353; 
Evans  v.  Coventry,  3  Drew.  80. 

11  Baker  v.  Backus,  32  111.  79. 

1-  Henshaw  v.  Wells,  9  Hump.  568  ;  Crane  v.  McCoy,  i  Bond, 
422. 

13  Chaplin  -u.  Young,  33  Beav.  330.  See  4  Sim.  572;  37  Penn. 
St.  217 ;  3  Russ.  105  ;  18  Md.  193  ;  37  How.  Pr.  222. 

1^  Williams  v.  Jenkins,  1 1  Ga.  595. 

15  Street  v.  Anderton,  4  Bro.  414. 

10  Billinghurst,  Ex  parte,  Amb.  104. 
16 


242  "^  THE   LAW   OF   PARTITION. 

session  received  all  the  rents  and  profits  and  refused  to 
pay  over  to  the  others  the  share  or  shares  due  them." 
Where  several  tenants  in  common  are  infants,  often- 
times a  receiver  will  be  appointed  for  the  purpose  of  pro- 
tecting that  share  of  the  rents  and  profits  which  belong 
to  the  infants." 

17  Sandford  v.  Ballard,  33  Beav.  401. 

18  Smith  V.  Lyster,  4  Beav.  227. 


CHAPTER   XVII. 

FINAL      JUDGMENT. 

The  report  of  the  commissioners  must  be  brought  into 
court  for  action  by  the  court  thereon.  If  the  report  be 
confirmed,  a  final  judgment  must  then  be  rendered  to  the 
effect  that  the  partition  be  firm  and  effectual  forever, 
which  judgment  is  binding  and  conclusive  upon  all  the 
defendants  upon  whom  summons  was  served,  either  per- 
sonally, or  without  the  State,  or  by  publication,  pursuant 
to  an  order  obtained  from  the  court  for  that  purpose  ;  and 
upon  each  person  claiming  from,  through,  or  under  either, 
or  any  of  the  parties,  so  personally  served,  or  served 
without  the  State,  or  by  publication,  as  aforesaid,  who 
have  obtained  an  interest  in,  or  a  lien  upon,  or  a  title  to, 
any  part  or  portion  of  the  premises  since  the  filing  of  the 
notice  of  pendency  in  the  clerk's  ofifice  of  the  county 
where  the  land  subject  to  the  action  is  situate  ;  and  each 
person,  not  in  being  when  the  interlocutory  judgment  is 
rendered,  but  who  thereafter,  by  reason  of  any  contingency, 
becomes  entitled  to  a  beneficial  interest  attaching  to  the 
estate,  or  any  part  or  portion  of  the  estate. 

The  right,  or  portion,  or  interest  of  any  one  may  be 
expressly  reserved  and  left  unaffected  by  the  inter- 
locutory judgment.  In  such  a  case  the  right,  interest, 
share,  or  portion  of  the  person  so  reserved  is  not  affected 

«  I243J 


244       •  "^^^    ^^^    °^    PARTITION. 

by  the  final  judgment,  nor  bound  by  any  act  that  occurs 
for  the  rendering  of  the  interlocutory  judgment  ;  or  any 
person  who  claims  an  interest  in  or  to  such  property,  or 
any  person  who  obtained  an  interest  by,  through,  or 
under  such  person,  whose  right,  title,  or  interest  has  been 
reserved  by  the  interlocutory  judgment  is  not  affected  by 
any  of  the  subsequent  mandates  or  judgments  in  the 
action.*  The  Revised  Statutes  provide  that  such  judg- 
ment shall  be  binding  and  conclusive  "  On  all  parties 
named  therein,  and  their  legal  representatives,  who  shall, 
at  the  time,  have  an  interest  in  the  premises  divided,  as 
owners  in  fee,  or  as  tenants  for  years,  or  as  entitled  to 
the  reversion,  remainder  or  inheritance  of  such  premises 
after  the  termination  of  any  particular  estate  therein  ;  or 
who,  by  any  contingency  contained  in  any  will  or  grant  or 

"  Upon  the  confirmation,  by  the  court,  of  the  report  of  the 
commissioners  making  partition,  final  judgment,  ihat  the  partition 
be  firm  and  effecutal  forever,  must  be  rendered,  which  is  bindmg 
and  conclusive  upon  the  following  persons  : 

1.  The  plaintiff;  each  defendant  upon  whom  the  summons 
was  served,  either  personally,  or  without  the  State,  or  by  publica- 
tion, pursuant  to  an  order  obtained  for  that  purpose,  as  prescribed 
in  chapter  fith  of  this  act ;  and  the  legal  representatives  of  each 
party,  specified  in  this  subdivision.  So  much  of  section  445  of 
this  act,  as  requires  the  court  to  allow  a  defendant  to  defend  an 
action,  after  final  judgment,  does  not  apply  to  an  action  for 
partition. 

2.  Each  person  claiming  from,  through,  or  under  such  a  party, 
by  title  accruing  after  the  filing  of  the  judgment-roll,  or  after  the 
filing,  in  the  proper  county  clerk's  office,  of  a  notice  of  the  pen- 
dency of  the  action,  as  prescribed  in  article  ninth  of  this  title. 

3.  Each  person,  not  in  being  when  the  interlocutory  judgment 
is  rendered,  who,  by  the  happening  of  any  contingency,  becomes 
afterwards  entitled  to  a  beneficial  interest  attaching  to,  or  an 
estate  or  interest  in,  a  portion  of  the  property,  the  person  first 
entitled  to  which,  or  other  virtual  representative  whereof,  was  a 
party  specified  in  the  first  subdivision  of  this  section.  N.  Y.  Code 
Civ.  Pro.  §  1557. 


FINAL     JUDGMENT.  245 

Otherwise,  may  be  or  may  become  entitled  to  any  bene- 
ficial interest  in  the  premises  ;  or  who  shall  have  any 
interest  in  an  undivided  share  of  the  premises,  as  tenant 
for  years,  for  life,  by  the  curtesy,  or  in  dower;  on  all  per- 
sons interested  in  the  premises,  who  may  be  unknown,  to 
whom  notice  shall  have  been  given  of  the  application  for 
partition,  by  such  publication  as  is  hereinbefore  directed  ; 
and,  on  all  other  persons  claiming  from  such  parties,  or 
persons  or  either  of  them."' 

In  general,  the  law  will  protect  all  dower,  interest,  or 
estate,  held  by  curtesy  or  for  life,  and  such  judgment  of 
partition  rendered  as  set  forth  by  the  section  of  the  Code 
just  cited,  and  that  part  of  the  Revised  Statutes  above 
quoted,  shall  not  affect  any  tenants,  or  persons  having 
claims  as  tenants,  in  dower,  by  the  curtesy  or  for  life,  to 
the  whole  of  the  premises,  which  shall  be  the  subject  of 
such  partition;  and  such  judgment  shall  not  preclude  any 
person,  except  as  specified  in  the  section  of  the  Code 
referred  to  and  the  Revised  Statutes  as  aforesaid,  from 
claiming  any  title  to  the  premises  in  question,  or  from 
controverting  the  title  or  interest  of  the  parties  between 
whom  such  partition  shall  have  been  made.''  The  court 
has  no  authority,  in  a  partition  suit,  to  order  a  sale  of  the 
premises,  unless  it  shall  be  satisfied  that  they  are  so  situ- 
ated that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners  ;  and  arrears  in  the  pay- 
ment of  taxes  and  assessments  furnish  no  ground  for 
ordering  a  sale  by  partition.* 

1  3  R.  S.  6  ed.  589,  §  44. 

2  R.  S.  6ed.  589,245.  See  i  Barb.  560;  15  N.  Y.  617;  11 
How.  Pr.  490;  I  11111,141;  II  Wend.  647;  17  Id.  488 ;  9  Barb.  500; 
65  Id.  195  ;  I   Edw.  Ch.  630. 

3  Fleet  7/.  Dorland,  11  How.  Pr.  489. 


246  THE    LAW    OF    PARTITION. 

Upon  the  return  of  the  report  of  the  commissioners, 
a  motion  may  be  made  to  set  that  report  aside.  If  that 
action  should  be  denied  by  the  court,  or  if  no  motion  of 
that  kind  should  be  made,  and  the  court  is  satisfied  that 
the  report  is  correct,  the  next  step  is  to  have  final  judg- 
ment or  decree  entered  thereon.  In  some  States  of  the 
Union,  an  actual  partition  is  fully  consummated  by  the 
entry  of  this  final  judgment  or  decree  ;  it  is  unnecessary 
for  conveyances  to  be  subsequently  executed  by  the  par- 
ties. This  rule  is  general,  or  nearly  so.  The  result  of 
the  judgment  under  such  a  rule  is  to  vest  the  title,  which 
previously  had  been  held  in  common,  in  severalty  in  the 
various  persons  to  whom  the  respective  allotments  of 
parcels  of  land  have  been  made,  and  it  is  claimed  that 
such  title  will  relate  back  to  the  date  of  the  filing  of  the 
commissioners'  report  after  the  same  has  been  duly  con- 
firmed by  the  court.  Undoubtedly,  the  title  has  relation 
back  to  the  time  of  the  division,  and  starts  from  that 
time  ;  the  same  as  the  title  of  an  administrator  relates 
back  to  the  time  of  the  death  of  his  intestate.  This  is  a 
necessity  for  the  more  complete  protection  of  estates.* 
Where  land  was  conveyed,  and  the  grantee  entered  into 
possession,  and '  afterwards  proceedings  were  had  in  par- 
tition, in  relation  to  the  same  premises,  to  which  the 
grantee  was  not  a  party,  and  the  premises  were  sold  by 
commissioners  appointed  by  the  court,  and  conveyed  by 
them  to  the  purchaser  ;  it  was  held  that  the  first  grantee 
was  not  precluded,  by  the  proceedings  in  partition,  from 
controverting  the  right  of  the  subsequent  purchaser,  and 

*  Young  V.  Frost,  i  Md.  403  ;  Wright  v.  Marsh,  2  Greene,  1 10. 
See  16  111.  126;  9  Barb.  503;  3  Grant  Cas.  381 ;  3  Johns.  Ch.  295  ; 
6  Dana,  417  ;  8  Jones,  451. 


FINAL    JUDGMENT.  247 

that,  his  possession   being   adverse,  the    deed   from   the 
commissioners  was  void/ 

Under  our  New  York  statutes  an  actual  partition  or 
sale  under  a  judgment  in  partition  is  effectual  to  bar  the 
future  contingent  interests  of  persons  not  in  esse,  though 
no  notice  is  published  to  bring  in  unknown  parties,  and 
though  such  future  owners  may  take  as  purchasers  under 
a  deed  or  will,  and  not  as  claimants  under  any  of  the  par- 
ties to  the  action.  Independent  of  the  statute,  contingent 
remaindermen,  or  persons  to  take  under  an  executory 
devise,  who  may  hereinafter  come  into  being,  are  bound 
by  the  judgment  as  being  virtually  represented  by  the 
parties  to  the  action  in  whom  the  present  estate  is  vested.'' 
A  judgment  in  partition  is  binding  upon  all  the  parties, 
though  minors  or  non-residents,  if  the  court  acquire  juris-- 
diction  of  them,  and  of  the  subject-matter.' 

In  an  action  for  partition  by  one  of  several  tenants  for- 
life,  a  sole  owner  of  the  estate  in  remainder,  who  was  a 
non-resident,  was  made  a  party  defendant,  an  order  for- 
service  upon  him  by  publication  was  obtained,  the  sum-- 
mons  and  complaint  were  served  upon  him  personally, 
without  the  State  ;  he  did  not  appear,  and  judgment  was 
perfected,  adjudging  that  the  premises  be  sold,  and  charg- 
ing the  estate  in  remainder  with  the  payment  of  a  portion 
of  certain  taxes  and  assessments.  It  was  held  in  this 
case,  that  the  court  had  jurisdiction,  that  a  judgment  was 
conclusive,  as  against  the  remaindermen  in   favor  of  the 

5  Jackson  v.  Vrooman,  13  Johns.  488.  See  2  Johns.  Cas.  58; 
2  Cai.  183  ;  9  Johns.  163  ;  10  Id.  164  ;  2  Barb.  159. 

0  Mead  v.  Mitchell,  17  N.Y.  210;  citing  Calv.  on  Parties.  48: 
Story  Eq.  PI.  144  ;  2  Y.  &  C.  595  ;  6  Ves.  498  ;  6  Sim.  643 ;  7  Paige, 
554  ;  I  Edw,  629 ;  2  Hoffm.  Ch.  161  ;  3  Barb.  Ch.  287. 

7  Clemens  v.  Clemens,  37  N.  Y,  59,  aiUe. 


248  THE     LAW    OF    rARTlTION. 

purchaser  at  a  sale  under  the  judgment  ;  and  that  in  an 
action  brought  by  said  purchaser  against  one  who  had 
contracted  to  purchase  a  portion  of  premises,  for  specific 
performance  of  the  contract,  the  defendant  could  not  be 
heard  in  impeachment  of  the  judgment.'  The  term  real 
estate,  as  used  in  the  statute,  includes  every  freehold 
estate  and  interest  in  land — that  is,  an  estate  in  fee  or 
for  life  ;  and  is  declared  to  include  every  estate,  interest 
and  right,  legal  and  equitable,  in  lands,  tenements  and 
hereditaments,  except  such  as  are  determined  or  extin- 
guished by  the  death  of  an  intestate  seized  or  possessed 
thereof,  or  in  an\-  manner  entitled  thereto,  and  except 
leases  for  years  and  estates  for  life  of  another  person. 
This  is  but  an  elaboration  of  the  common-law  definition 
of  real  estate.* 

Under  the  statutes  of  this  State,  when  all  of  the 
parties  in  being  having  any  estate  or  interest,  present  or 
future,  vested  or  contingent,  in  the  lands,  are  made  par- 
ties to  an  action  for  partition,  a  purchaser  at  a  sale  under 
a  judgment  therein  acquires  a  perfect  title.  The  judg- 
ment is  conclusive  as  to  the  rights  of  all,  and  the  sale  is 
effectual  to  bar  the  future  contingent  interests  of  persons 
not  ///  issr  at  the  time,  although  no  notice  is  published  to 
bring  in  unknown  parties,  and  although  such  future 
owners  may  take  as  purchasers,  under  a  deed  or  will,  and 
not  as  claiments  under  any  of  the  parties  to  the  action. 
That  such  judgment  was  conclusive  as  to  the  rights  of  all, 
is  well  established  by  authority.  A  tenant  in  common  is 
not  debarred  from  bringing  a  bill  of  partition  individually, 
merely  because  he  is  a  trustee  as  to  another  part.     There 

P  Jenkins  t.  Fahey,  73  N.  Y.  355. 

"  9  Kent  Com.  401  ;  Merry  v.  Hallet,  2  Cow.  497. 


FINAL   JUDGMENT.  249 

can  be  a  partition  or  sale  notwithstanding  other  persons 
may  come  in  esse.  Future  contingen  t  interests,  not  in  esse, 
may  be  barred  by  a  sale  under  a  judgment  in  partition. 

The  decree  should  settle  the  rights  of  all  the  parties 
to  the  proceedings,  and  not  leave  a  portion  of  the  prop- 
erty to  be  the  subject  of  another  proceeding  in  parti- 
tion. Partition  severs  tenancy,  but  does  not  enlarge 
the  estate.  The  final  judgment  must  direct  that  each  of 
the  parties,  who  is  entitled  to  the  possession  of  any  par- 
cel of  land  allotted  to  him,  be  let  into  the  possession  of 
such  land.  This  possession  such  party  is  entitled  to 
immediately  after  the  determination  of  the  particular 
estate,  as  the  case  may  require.  ^  The  judgment  may 
direct  the  delivery  of  the  possession  of  the  property  thus 
allotted  to  the  person  entitled  to  the  possession  there- 
to ;  and  if  the  party,  or  his  representative  or  successor, 
who  is  bound  by  the  judgment,  withholds  possession 
from  the  person  who  is  entitled  to  such  possession,  the 
court,  besides  punishing  such  party  for  disobedience  aa 
in  contempt,  may,  in  its  discretion,  require  the  sheriff  to 
put  the  proper  person  into  possession  of  the  property  to 
which  he  is  entitled  by  virtue  of  the  judgment.  Such  aq 
order  is  executed  as  if  the  same  was  an  execution  for  the 
delivery  of  the  possession  of  the  property.  "  In  one  case 
cited  under  the  same  section  of  the  Code,  where  a  per- 
son who  was  proved  to  be  insolvent,  was  in  possession 
of  mortgaged  premises,  which  were  claimed  by  another, 
under  a  decree  of  foreclosure  and  sale  to  him,  and  theper- 

^  The  final  judgment  must  also  direct  that  each  of  the  parties 
who  is  entitled  to  possession  of  a  distinct  parcel  allotted  to  him, 
be  let  into  the  possession  thereof,  either  immediately,  or  after  the 
determination  of  the  particular  estate,  as  the  case  requires. 

16  N.  Y.  Code  Civ.  Pro.  I  1675. 


250  THE    LAW    OF    PARTITION. 

son  SO  in  possession  filed  a  bill  to  redeem  the  premises, 
on  the  ground  that  he  was  not  a  party  to  the  bill  of  fore- 
closure, the  court  directed  a  receiver  to  be  appointed  to 
receive  the  rents  and  profits  of  the  premises,  pending"  the 
litigation,  unless  the  complainant  should  elect  to  deliver 
up  the  possession,  or  give  security  for  the  rents  and 
profits,  or  pay  into  court  the  mortgage  money  admitted 
to  be  due.  ''  In  this  case  one  claimed  a  right  to  the 
possession  of  the  premises  under  a  title  paramount  to  the 
rights  acquired  by  the  filing  of  the  bill  against  the  defend- 
ant Golden.  The  chancellor  said  that  when  he  obtained 
that  possession  by  duo  course  of  law,  it  related  back  to 
the  recovery  of  the  judgment,  or  at  least  to  the  issuing 
of  the  execution. 

If  the  judgment  of  partition  is  not  conclusive  as  to 
title,  it  is  only  because  the  question  of  title  does  not  arise 
as  an  issue  in  the  action  under  the  laws  of  the  State  in 
which  the  partition  is  bought.  Because,  it  is  a  general 
rule,  both  at  common  law  and  in  suits  under  the  statute, 
that  the  judgment  is  conclusive  upon  all  issues  deter- 
mined by  it,  and  that  rule  is  applicable  to  judgments 
rendered  in  partition  cases,  the  same  as  it  is  applicable  to 
judgments  in  other  forms,  or  kinds  of  action.  "  The  ques- 
tion of  possession  is  always  an  issue,  and  it  is  generally 
believed  that  the  common  law  action  of  partition  is  an 
action  possessory  in  its  nature,  when  the  principal  action 
at  issue  and  the  principal  question  settled  by  the  judg- 
ment is  the  possession  of  the  co-tenants  in  common  ; 
and  the  title  does  not  come  up  either  directly  or  indi- 
rectly as  an  issue   in  the   action,  or  the  question    settled 

1'^  Frelinghuysen  v.  Colden,  4  Paige,   203. 

18  Dixon  V.  Warters,  8  Jones.  450;  Foxcroft  t/.  Barnes,  29  Me. 
129;  Rabbz/.  Aiken,  2  McCord  Ch.  125. 


FINAL    JUDGMENT.  25  1 1 

Upon  by  the  judgment.  In  case  of  default,  a  party  to  the^ 
suit  is  estopped  from  showing  that  at  the  time  of  the 
partition  he  was  holding  any  part  of  the  lands  in  ques- 
rion  in  severalty  adversely  to  his  other  co-tenants,  or 
that  the  complainant  or  petitioner,  as  he  is  often  termed, 
had  no  interest,  either  directly  or  indirectly,  in  the  prop- 
erty in  question." 

By  the  wording  of  the  New  York  statutes  one  can 
readily  see  that  the  question  of  title  becomes  an  impor- 
tant issue  in  all  cases  of  partition.  The  old  statute  before 
the  enactment  of  the  present  Code  read  :  "  When  sev- 
eral persons  shall  hold  and  be  in  possession  of  any  lands, 
tenements  or  hereditaments,  as  joint  tenents,  or  as  ten- 
ants in  common,  in  which  one  or  more  of  them  shall  have 
estates  of  inheritance,  or  for  life  or  lives,  or  for  years, 
any  one  or  more  of  such  persons,  being  of  full  age,  may 
apply,  by  petition,  to  the  Supreme  Court  or  to  the  county 
court  of  the  county,  or  the  mayor's  court  of  the  city 
where  the  premises  are  situated,  for  a  division  and  parti- 
tion of  such  premises,  according  to  the  respective  rights 
of  the  parties  interested  therein,  and  for  a  sale  of  such 
premises,  if  it  shall  appear  that  a  partition  thereof  can- 
not be  made,  without  great  prejudice  to  the  owners."  '" 
Section  1532  of  the  New  York  Code  of  Civil  Procedure 
uses  the  term  "  hold  and  are  in  possession."  It  seems 
almost  impossible  to  construe  the  word  "hold"  to  refer 
to    anything  else  than  the   title,  as  one  would  naturally, 

19  Cole  V.  Hall,  2  Hill,  627  ;  39  Iowa,  601  ;  4  Allen,  376. 

20  3  R.  S.  6  ed.  583,  §  I.  See  46  N.  Y.  185  ;  65  Barb.  241  ;  3 
Daly,  186 ;  I  N.  Y.  S.  C.  125  ;  3  Hun,  736 ;  6  T.  &  C.  434  ;  4  Hun. 
199;  17  N.  Y.  217  ;  15  Id.  623;  12  Id.  616;  3  Barb.  576;  5  Denio. 
385;  3  Paige,  245  ;  i  Ed.  567;  5  Cow.  295;  17  How.  Pr.  52  ;  14 
Abb.  Pr.  258. 


252  THE    LAW    OF    PARTITION. 

in  reading  both  the  Revised  Statutes  and  the  Code,  ask 
what  that  word  refers  to.  If  it  only  refers  to  possession, 
then  why  use  the  term  "  hold  and  are  in  possession  ?" 
Hold  what  ?  Why,  the  title  !  Meaning  persons  who 
hold  the  title  and  are  in  possession  of  the  premises  as  co- 
tenants,  or,  as  tenants  in  common,  may  apply  to  the 
court,  in  the  manner  prescribed  by  the  Code,  for  parti- 
tion, thus  bringing  directly  before  the  court  the  question 
of  the  title  to  the  premises,  which  becomes  an  element 
together  with  the  question  of  possession,  which  must  be 
passed  upon  by  the  courts,  so  that  a  judgment  properly 
rendered  would  be  binding  upon  all  questions  pertaining 
to  the  title  of  the  premises,  and  to  the  possession  of  the 
same,  arising  under  the  terms  hold  and  possess,  as  used 
in  the  statute  and  the  Code,  making  the  question  in  New 
York  State,  and  in  most  States  where  the  action  of  parti- 
tion is  governed  by  statute,  a  higher  action  than  one  that 
is  merely  possessory  in  its  nature, — that  is,  an  action 
adjudicating  and  dividing  the  original  title  to  the  prem- 
ises between  the  co-tenants  thereof. 

The  judgment  binding  those  questions  or  issues  which 
arise  in  the  case  relative  to  the  title  and  possession  of  the 
parties  in  interest,  meaning  those  who  are  made  parties 
to  the  suit,  it  is  also  binding  upon  any  person  who  may 
acquire  an  interest  from  any  of  these  parties  to  the  action, 
after  the  rendering  of  an  interlocutory  judgment.  And 
in  those  States  where  a  notice  of  pendency  of  action  is 
filed  with  the  complaint  in  the  county  or  district  clerk's 
office,  the  judgment  is  binding  upon  those  who  acquire  an 
interest  from  any  party  to  the  action  after  the  filing  of 
such  notice  of  pendency,  and  those  parties  are  estopped 
from  asserting  that  they  have  a  lien  or  claim  upon  the 


FINAL    JUDGMENT.  253 

premises.     When  the   matter  has  been  settled  by  such 
judgment,  although  it   has  been  done  by  reason  of  the 
default  of  the  parties  or  any  part  of  them,  the  preponder- 
ance of  the  authorities  is  undoubtedly  in  favor  of  the  legal 
theory  that  each  co-tenant,  who  has   lost  possession  or 
has  been  evicted  by  reason  of  a  compulsory  partition,  may 
call  upon  his  co-tenants  to  contribute  their  proportions  of 
his  loss,  by  reason  of  his  losing  such  possession  or  his 
being  so  evicted,  and  each  co-tenant  is,  by  his  obligation 
of  warranty,    estopped    from  asserting    an   independent 
adverse  title,  and    the  judgment   is  supposed  to  fix  and 
sustain  the  rights  of  each  co-tenant   in  accordance  with 
the  equities   surrounding    the   case.''     The  judgment    of 
partition  will   give   to  the   purchaser  no  better  title  than 
the   co-tenants   receive  by  reason  of  the    death  of  their 
common  ancestor,  or  no  better  title  than  the  co-tenants 
receive  from  the  person  who  transfers  to  them  the  title  of 
the  premises. 

The  final  judgment  or  decree  in  partition  may  be  cor- 
rected, as  it  is  not  exempt  from  interference,  and  is  within 
the  controlling  powers  of  courts  of  equity.  A  mistake  of 
facts, — such  as  a  misstatement  of  the  rights  of  one  or  more 
of  the  parties  to  the  action,  or  an  improper  allotment,  not 
in  accordance  with  the  report  of  the  commissioners,  or  a 
description  of  one  or  more  parcels  by  metes  and  bounds, 
which  do  not  correctly  describe  the  land, — are  all  subject 
to  correction  by  the  court  rendering  the  judgment.  Any 
mistake  of  facts,  such  as  would  authorize  a  court  of 
equity  in  enjoining  or  setting  aside  an  ordinary  judgment, 

21  Woodbridge  v.  Banning,  14  Ohio,  330;  Walker  v.  Hall,  15 
Id.  362.  See  50  Mo.  592  ;  74  Ind.  283;  2  Allen,  122  ;  38  Am.  Dec. 
380. 


254  THE   LAW    OF    PARTITION. 

will  authorize  it,  in   many  instances,  to  correct  a  judg- 
ment or  decree  of  partition." 

An  invalid  and  imperfect  partition  may  become  bind- 
ing by  reason  of  the  acquiescence  of  the  parties,  especial- 
ly, when  those  parties  had  knowledge  of  the  invalidity  of 
the  partition,  or  knowledge  of  those  things  which  made 
it  imperfect.  That  acquiescence  would  go  so  far  as  to 
estop  the  parties  from  raising  questions  in  reference  to 
such  invalid  or  imperfect  partition  as  would  be  of  injury  to 
the  adverse  party,  who  had  been  acting  upon  and  relying 
on  such  acquiescence."  A  decree  of  partition  not  ap- 
pealed from  in  court  of  probate  is  conclusive  upon  the 
parties  and  their  privies  as  to  the  state  of  the  title  at  the 
time  of  its  rendition,  and  constitutes  a  bar  to  a  claim 
of  a  greater  interest  in  the  land  than  the  share  decreed  to 
them.^*  Where  the  return  of  a  levy  shows  that  an  undi- 
vided half  of  the  lot  specified  was  set  off,  the  subsequent 
statement  that  it  was  set  off  by  metes  and  bounds  can 
have  no  effect. ^^  It  has  been  held  that  such  a  levy 
shows  a  want  of  understanding  or  a  heedlessness  that 
it  is  inconsistent  with  the  requirements  of  a  valid  levy.'" 
A  fee  simple  is  the  largest  estate  known  to  the  law  ;  and 
when  the  term  is  used  with  no  qualification  or  limitation 
added,  it  does  imply  an  estate  owned  in  severalty.  So 
when  a  person  owns  in  common  with  another,  he  does 

22  Freem.  on  Co-ten.  §  534;  Ross  v.  Armstrong,  25  Tex.  372; 
12  Penn.  St.  260. 

.     23  Jackson  v.  Richtmyer,  13  Johns.  376 ;    24  Tex.  439  ;    8  Met. 
370;  12  Me.  198. 

2^  Davis  V.  Durgin,  2  N.  EJng.  R.  910;  Morgan  v.  Dodge,  44  N. 
H.  255  ;  22  Id.  412  ;  12  Allen,  600. 

25  Peaks  V.  Gifford,  2  N.  Eng.  R.  878. 

26  Chase  v.  Williams,  71  Me.  190. 


FINAL    JUDGMENT.  255 

not  own   the  entire   fee,  or    any   fee    simple.     It  is  a  fee 
divided  or  shared  by  one  or  more." 

The  final  judgment  must  award  the  costs  in  the  action, 
and  must  direct  that  each  defendant  pay  to  the  plaintiff 
his  share  of  the  plaintiffs  costs,  including  any  extra 
allowance,  which  may  be  fixed  by  the  court.  If  any  one 
or  more  of  the  defendants  are  unknown,  the  share  and 
proportion  of  the  costs  of  the  unknown  defendants  must 
be  fixed  and  specified  in  like  manner.  And  an  execution 
may  be  issued  for  the  collection  of  the  costs  awarded 
against  any  unknown  defendant,  the  same  as  if  he  was 
named  in  the  judgment  ;  and  the  right,  share,  or 
interest  in  the  property,  allotted  to  him,  may  be  sold 
by  virtue  of  such  execution,  for  the  purpose  of  satisfying 
the  same,  and  for  the  purpose  of  collecting  the  plaintiff's 
costs."  A  sale  of  the  premises  upon  such  execution  shall 
be  as  valid,  as  if  such  unknown  owner  had  been  named  in 
the  proceedings  and  in  such  execution.-'  The  court  has 
no  discretionary  power  to  charge  either  party  with  the 
entire  costs  on  the  ground  that  he  unreasonably  refused 


27  Brackett  v.  Ridlon,  54  Me.  434;  Boynton  v.  Grant,  52  Me. 
220;  Stinson  v.  Rouse,  52  Me.  261  ;  Pendergrassz/.  York  Mfg.  Co., 
76  Id.  512.     See  56  Me.  224 ;  67  Id.  591  ;  71  Id.  196  ;  TJ  Id.  401. 

c  The  final  judgment  for  the  partition  of  the  property  must 
also  award,  that  each  defendant  pay  to  the  plaintiff  his  proportion 
of  the  plaintiff's  costs,  including  the  extra  allowance.  The  sum  to 
be  paid  by  each  must  be  fixed  by  the  court,  according  to  the  re- 
spective rights  of  the  parties,  and  specified  in  the  judgment.  If  a 
defendant  is  unknown,  his  proportion  of  the  costs  must  be  fixed 
and  specified  in  like  manner.  An  execution  against  an  unknown 
defendant  may  be  issued  to  collect  the  costs  awarded  against  him, 
as  if  he  was  named  in  the  judgment;  and  his  right,  share  or  inter- 
est in  the  property  may  be  sold  by  virtue  thereof,  as  if  he  .was 
named  in  the  execution. 

283R.  S.  N.  Y.  6ed.  595,  §  72. 


256  THE    LAW    OF    PARTITION. 

to  make  partition  by  deed."  A  doweress,  when  properly 
a  party  to  the  suit,  is  chargeable  with  a  proportion  of  the 
costs.'"  The  question  of  the  defendant's  proportion  of 
costs  may  be  left  until  a  further  determination  by  the 
court,  when  his  right  or  interest  in  the  premises  remains 
settled.''  As  a  general  rule,  the  defendants  who  receive 
none  of  the  lands  should  not  be  charged  with  costs. 
When  the  plaintiff  makes  persons  defendants  who  have 
no  interest  in  the  subject-matter  of  the  suit,  the  costs  of 
such  defendants  will  not  be  charged  upon  the  fund  or 
against  their  co-defendants,  but  must  be  paid  by  the 
plaintiff  personally,  unless  such  unnecessary  parties  are 
brought  in  at  the  request  of  the  other  defendants." 

The  attorney  of  the  plaintiff  acquires  a  lien  for  his  dis- 
bursements, on  plaintiff's  share  in  the  property  in  suit,  of 
which  the  plaintiff  cannot  divest  him  by  an  assignment  of 
his  interest  pending  the  action.''  If  the  plaintiff  cause  liti- 
gation by  setting  up  an  unfounded  claim,  he  will  be  charged 
with  the  additional  costs  of  such  claim."  The  costs  should 
be  apportioned  between  the  complainant  and  the  other 
parties,  according  to  their  respective  rights  and  interests 
in  the  premises  as  ascertained  and  settled  by  the  decree; 
and  the  final  decree  should  also  direct  that  the  several 
parties  entitled  to  such  costs  have  execution  therefor, 
according  to  the  course  and  practice  of  the  court  in  which 
such  decree  is  rendered.  In  partition  suits  where  an 
actual  partition  of  the  premises   is  decreed,  the   costs    of 

29  McCowan  v.  Morrow,  3  Code  R.  9. 

30  Tanner  z/.  Niles,  i  Barb.  560. 

31  Phelps  V.  Green,  3  Johns.  Ch.  302. 

32  Hamersley  v.  Hamersley,  7  N.  Y.  Leg.  Obs.  127. 

33  Creighton  v.  Ingersoll,  20  Barb.  541. 

34  Crandall  v.  Hoysradt,  i  Sandf.  Ch.  40. 


FINAL   JUDGMENT.  257 

the  complainant,  and  of  all  the  defendants  who  appeared 
in  the  cause,  are  to  be  taxed  as  between  party  and  party, 
and  the  aggregate  amount  of  the  several  bills  apportioned 
and  charged  upon  the  parties  to  the  suit,  according  to 
their  respective  rights  and  interests  in  the  premises  ;  and 
the  parties  whose  taxed  bills  exceed  their  ratable  propor- 
tion of  the  whole  costs,  are  entitled  to  execution  against 
those  whose  tax  bills  are  less.''  Where  there  is  a  sale  of 
the  property,  each  side  is  entitled  to  costs;  but  where 
there  is  actual  partition,  the  right  of  both  sides  to  costs  is 
a  subject  of  serious  doubt." 

So  far  in  this  chapter  we  have  treated  of  an  actual 
division  of  the  property,  and  an  allotment  to  each  co-ten- 
ant of  his  or  her  respective  share.  In  case  a  partition 
and  actual  division  of  the  property  cannot  be  had,  then  it 
must  be  sold  and  the  proceeds  thereof  divided.  The  sale 
of  the  property  and  division  of  the  proceeds  we  must  now 
consider.  In  England,  and  in  this  country,  the  power  of 
the  courts  has  been  enlarged,  and  they  are  no  longer 
compelled  to  order  a  partition  of  the  land  in  question, 
when  that  course  is  injurious  to  the  parties  in  interest.^'' 
The  applicants  for  a  sale  of  the  premises  must  show  that, 
the  land  is  so  located  that  it  cannot  be  divided  or  par- 
celed off  among  the  co-tenants,  without  injury  to  their 
interests,  or,  in  other  words,  that  the  dividing  and  parcel- 
ing of  the  estate  would  be  ruinous  to  those  who  own  as; 
co-tenants.  The  preponderance  of  the  proof  is  upon  the 
one  who  asks  for  a  sale,  and  it  is  for  him  to  show  the  facts. 

35  Tibbits  V.   Tibbits,  7  Paige,  204. 

30  Weed  v.  Paine,  4  Civ.  Pro.  R.  305  ;  31  Hun,  10.     See  N.  Y. 
Code  Civ.  Pro.  \  1579;  13  Abb.  N.  C.  204. 
37  Freem.  on  Co-ten.  536. 
17 


258  THE    LAW    OF    PARTITION. 

necessary  and  requisite  to  give    the  court  jurisdiction    to 
order  a  sale  of  the  land  instead  of  a  partition/' 

If  the  commissioners  report  that  the  property,  or  any 
part  of  it,  cannot  be  partitioned,  without  great  prejudice 
to  the  owners,  and  if  that  report  is  just  and  correct,  and 
the  court  be  so  satisfied  that  it  is  correct,  then  the  pre- 
mises or  that  part  of  the  premises  that  cannot  be  parti- 
tioned, will  be  decreed  to  be  sold  by  the  final  judgment, 
or  a  supplemental  interlocutoryjudgment  will  be  rendered, 
reciting  the  facts,  and  directing  that  the  property  be  sold 
by  a  referee,  designated  in  the  judgment  for  that  purpose, 
or  by  the  sheriff.**  The  New  York  Revised  Statutes  pro- 
vide that  instead  of  appointing  commissioners  in  the  first 
instance  to  make  partition,  if  it  shall  appear,  by  the  report 
of  a  master  or  otlferwise,  that  the  premises  or  any  part 
thereof  are  so  circumstanced  that  a  partition  cannot  be 
made  without  great  prejudice  to  the  owners,  the 
court  may  order  a  sale  of  the  premises.''  Partition 
is  a  matter  of  right,  by  the  common  law  as  well  as 
by  statute.;  and,  where  the  sale  as  well  as  the  actual 
partition  of  the  premises  held  in  common,  will  be  greatly 
prejudicial    to   the    owners,    as   compared    with    the  use 

38  Wendley  v.  Barrow,  2  Jones  Eq.  66  ;  Johnson  v.    Olmstead, 
49  Conn.  517  ;  48  N.  Y.  126. 

''  If  the  commissioners,  or  a  majority  of  them,  report  that  the 
property,  or  a  particular  lot,  tract,  or  other  portion  thereof,  is  so 
circumstanced,  that  a  partition  thereof  cannot  be  made,  without 
great  prejudice  to  the  owners  thereof,  the  court,  if  it  is  satisfied 
that  the  report  is  just  and  correct,  may  thereupon,  except  as  other- 
wise expressly  prescribed  in  this  article,  modify  the  interlocutory 
judgment, or  render  a  supplemental  interlocutory  judgment.recit- 
ing  the  facts,  and  directing  that  the  property,  or  the  distinct 
parcel  thereof  so  circumstanced,  be  sold  by  a  referee,  designated 
in  the  judgment,  or  by  the  sheriff.     N.  Y.  Code  Civ.    Pro.  §  1560 

39  3  N.  Y.  R.  S.  596,  §  81. 


FINAL    JUDGMENT.  259 

thereof  in  common,  an  actual  partition  must  be  made  ; 
unless  the  injury  to  the  interests  of  the  owners  collect- 
ively, in  reference  to  the  rights  of  each  in  common  prop- 
erty, will  be  much  greater  by  an  actual  partition  than  by 
a  sale.^"  An  order  for  sale  of  premises  in  partition  will 
not  be  made  unless  the  court  becomes  satisfied  that  there 
is  a  necessity  for  such  order  existing.  Therefore,  it  is 
necessary  that  the  facts  and  circumstances  be  stat- 
ed upon  which  the  opinion  of  the  commissioners  is 
founded." 

Partition  sale  should  not  be  ordered  where  infants  or 
a  trustee  without  power  of  purchase  are  parties  entitled, 
unless  it  appears  that  an  actual  partition  with  or  without 
compensation  cannot  be  made.  Where  there  are  several 
parcels,  the  impossibility  of  dividing  one  is  not  a  reason 
for  ordering  a  sale  of  that  one.  Interests  of  infants  should 
be  carefully  scrutinized  and  protected."  Where  commis- 
sioners state  in  their  report  that  the  portion  set  off  for  the 
widow's  dower  is  so  situated  as  to  make  a  valuable  farm, 
and  if  divided  among  the  heirs,  the  parcels  that  would  be 
assigned  to  each,  would  be  so  small  as  to  be  of  little  value, 
and  would  lessen  the  value  of  the  whole,  the  reason 
assigned  is  entirely  satisfactory,  and  the  same  reason  would 
be  sufficient  to  authorize  the  court  to  order  a  sale  thereof, 
subject  to  the  widow's  life  estate.*'  In  one  case,  it  was 
ordered  that  the  furniture  of  the  hotel  situated  upon  the 
real  estate  in  question  should   be   sold  in  one  parcel  with 

*^  Smith  V.  Smith.  10  Paige,  470. 

*^  Tucker  z/.  Tucker,  19  Wend.  226.  See  11  How.  Pr.  490;  40 
Wis.  362:45  Ind.  318  ;  3  Abb.  N.  C.  12 ;  21  Alb.  Law  J.  174:65 
Barb.  192. 

42  Walker  v.  Walker,  3  Abb.  N.  C.  12. 

<3  Post  V.  Post,  65  Barb.  192,  aftte. 


260  THE    LAW    OF    PARTITION. 

the  real  estate.  It  appeared  that  it  could  be  disposed  of 
to  a  better  advantage  in  that  way  ;  the  court  held  that  it 
was  no  error/*  The  judgment  is  conclusive  where  the 
court  has  jurisdiction  as  to  whether  it  should  be  a  sale  or 
partition.*^  The  real  estate  may  be  divided,  or,  in  some 
instances,  it  may  be  decreed  to  the  petitioner  at  the 
valuation/* 

If  a  sale  is  ordered,  the  court  has  a  right,  and  it  is  its 
duty  to  adjust  and  secure  the  rights  of  the  parties  in  the 
proceeds  of  the  sale,  whether  such  rights  are  legal  or 
equitable/'  Where  one  tenant  in  common  has  made  a 
verbal  agreement  with  his  co-tenant  to  sell  to  him  his 
interest  in  the  lands  held  in  common,  and  after  a  partial 
or  full  payment  refused  or  neglected  to  fulfill  the  contract, 
a  court  of  equity  in  awarding  partition  may  decree  that 
the  purchase  money  so  paid  shall  be  a  lien  upon  the 
premises/*  Likewise,  a  court  may  decree  that  the  judg- 
ment shall  be  binding  upon  an  infant,  or  that  the  convey- 
ance made  by  an  infant  shall  be  binding  upon  him,  unless 
he  show  cause  against  it  within  a  reasonable  time  after 
arriving  of  age/*  Where,  in  a  partition  suit,  an  actual 
partition  cannot  be  made  and  a  sale  is  decreed,  the  ques- 
tion as  to  the  distribution  of  the  proceeds  of  the  sale  of 
an  undivided  share  of  the  premises  between  the  owner 
and  incumbrancers  is  collateral  to  the  main  purpose  of 

^  Prentice  v.  Janssen,  9  N.Y.  Week.  Dig.  466.  See  i  Jarman  on 
Wills,  523  ;  Story  Eq.  Jur.  §  793;  69  N.  Y.  i  ;  72  Id.  563;  41  Id. 
289;  21  Alb.  L.  J.  174;  7  N.  Y.  Week,  Dig.  318. 

•*5  Clemens  v.  Clements,  37  N.  Y.  59,  an^e, 

•*6  Dewar  2/.  Spence,  2  Whart.  211. 

•*7  Milligan?/.  Poole,  35  Ind.  64;  Gregory  ^'.Grego^y,  69  N.C.  522. 

48  Campbell  v.  Campbell,  2  N.  J.  Eq.  268. 

*9  Jackson  v.  Edwards,  7  Paige,  388,  anU. 


FINAL   JUDGMENT.  26  I 

the  action;  the  court,  having-  jurisdiction  of  the  fund, 
adjudges  how  distribution  shall  be  made."" 

An  infant  defendant  in  a  proceeding  for  the  partition 
of  real  estate,  who  is  not  served  with  a  summons  notify- 
ing him  of  its  pendency,  or  whose  guardian  does  not 
attend  and  approve  of  the  partition,  he  and  his  g-uardian 
having  no  actual  knowledge  of  the  proceeding  until  after 
its  determination,  may  not  have  a  review  of  the  partition 
within  one  year  after  the  removal  of  his  disability,  with- 
out showing"  sufficient  cause.  A  judgment  in  proceeding 
to  review  a  former  judgment,  either  granting  or  refusing 
the  review,  puts  an  end  to  the  action  for  a  review,  and  is 
a  judgment  from  which  an  appeal  will  lie  to  the  Supreme 
Court." 

An  order  for  sale  may  be  made  in  a  partition  action  on 
a  motion  upon  admissions  in  the  pleadings.  In  such  an 
order,  the  court  will  direct  an  account  of  rents  and  profits 
received  by  the  plaintiff,  where  he  has  been  in  possession, 
and  adjourned  further  consideration."  A  tenant  who  has 
improved  part  of  the  common  property  is  entitled  to  the 
improved  part  ;  or,  if  that  will  injure  the  co-tenants,  to 
have  compensation  in  money  for  such  improvements." 
Where  one  tenant  in  common  has  received  rents  of  the 
property  held  in  common,  his  co-tenant  has  a  lien  upon 
his  share  for  the  proportion  of  the  rents  belonging  to  such 
co-tenant."  A  life  tenant  has  a  right  to  use  mines  upon 
the  premises  for  his  own  benefit  and   profit,  where   the 

50  Halsted  v.  Halsted,  55  N.  Y.  442. 

51  Brown  v.  Keyser,  53  Ind.  85. 

52  Burnell  v.  Burnell,  27  Moak  Eng.  472.  See  Gilbert  v.  Smith, 
2  Ch.  D.  686;  Bennett  v.  Moore,  i  Ch.  D.  692. 

•''3  Paddock  v.  Shields,  57  Miss.  340. 
54  Wright  V.  Wright,  59  How.  Pr.  177. 


262  THE     LAW    OF     PARTITION. 

owner  in  fee  opened  such  mines."  The  Michigan  statutes 
allow  one  tenant  in  common  the  benefit  of  improvements 
put  upon  the  common  property.'^"  The  rule  is  the  same 
in  Louisiana."  Tenants  in  common  sustain  to  each  other 
a  relation  of  trust  because  of  their  common  interest,  and 
while  one  cannot  act  for  his  individual  interests  in  hostil- 
ity to  the  common  interest,  yet,  if  he  does  what  is  neces- 
sary to  the  protection  of  the  common  interest,  he  is 
entitled  to  charge  the  common  property  with  the  costs  of 
the  benefit  ;  but  one  of  the  co-tenants  in  common  of  the 
estate  in  expectancy  is  not  permitted  by  this  principle, 
to  discharge  a  burden  on  the  common  property  in  the 
possession  of  the  tenant  of  the  particular  estate,  except 
where  it  is  necessary  to  prevent  the  destruction  of  the 
expectancy.'^' 

It  is  the  right  of  the  plaintiff,  who  is  entitled  to  a 
moiety  of  the  property,  to  have  a  sale  instead  of  a  parti- 
tion, notwithstanding  the  opposition  or  disability  of  the 
defendant  who  is  entitled  to  the  other  moiety,  unless  the 
defendant  show  reason  to  the  contrary.^'  In  one  English 
case,  the  estate  consisted  of  a  mansion-house  and  one 
hundred  and  eighty-five  acres  belonging  to  the  plaintiff 
and  the  defendant  in  equal  moieties.  It  was  almost  sur- 
rounded by  a  large  estate,  of  which  the  plaintiff  was 
tenant  for  life,  and  with  which  it  was  formerly  united  as  a 


^^  Gaines  v.  Green,  33  N.  J.  Eq.  603;  reversing  32  Id.  86. 
^^  Sands  v.  Davis,  40  Mich.  14. 

57  Jackson  v.  Ladeling,  99  U.  S.  513;  citing  88  U.  S.  492  ;  19 
La.  414;  3  La.  Ann.  203;  4  La.  Ann.  519,  541  ;  13  Id.  494;  16  Id. 
243 ;  26  Id.  587  ;  38  De  Rei  Vindincentione,  bk.  6,  tit.  i ;  6  Paige,  390; 
80  U.  S.  543  ;  4  Rid.  462  ;  i  Rand.  58. 

58  Harrison  v.  Harrison,  56  Miss.  174. 

59  Rowe  V.  Gray,  22  Moak  Eng.  70. 


FINAL    JUDGMENT.  26 


J 


part  of  the  same  family  estate.  In  an  action  for  partition 
or  sale,  the  plaintiff  desired  a  partition  under  which  the 
mansion-house  and  part  of  the  land  contiguous  thereto 
should  be  allotted  to  him,  alleging  that  its  value  would 
be  depreciated  if  severed  from  the  larger  estate  ;  he  offer- 
ing to  pay  what  should  be  necessary  for  equality  of  parti- 
tion. The  defendant,  who  was  also  a  neighboring  land- 
owner, desired  a  sale,  and  had  offered,  on  the  writ  being 
issued,  to  submit  to  an  immediate  decree  for  sale.  In 
this  case,  it  was  held  by  the  court,  that,  under  section  4  of 
the  Partition  Act  of  England,  of  1868,  as  "no  good  reason 
to  the  contrary"  of  a  sale  had  been  adduced,  a  sale  must 
be  directed.'" 

Where  an  undivided  portion  of  a  tract  of  land  is  con- 
veyed, and  the  grantor  afterwards  conveys  to  others 
particular  parts  by  metes  and  bounds,  and  the  grantee  of 
the  undivided  portion  then  petitions  for  partition,  his 
share  of  the  land  should  be  set  off  and  assigned  as  not  to 
embrace  any  part  of  the  land  thus  conveyed  by  metes 
and  bounds,  if  he  can  otherwise  have  a  fair  and  equal 
partition.  "  A  partition  of  land,  made  without  notice  to 
a  party  who  has  attached  on  mesne  process  the  interest  of 
one  of  the  tenants  in  common,  is  not  binding  upon  such 
party,  and  he  may  therefore  rightfully  levy  his  execution 
as  upon  an  estate  in  common.  " 

The  jurisdiction  of  courts  of  equity  in  matters  of  parti- 
tion is  doubted,  but,  in  many  cases,  is  indispensable. 
A  bill   in  chancery    lies    for    partition,   notwithstanding 


60  Porter  v.  Lopes,  23  Moak  Eng.  631;  citing  30  Beav.  109;  33 
Id.  401  ;  I  Peer  Wms.  446. 

61  Webber  v.  Mallett.  4  Shep.  88. 

62  Munroe  v.  Luke,  19  Pick,  39. 


264  THE    LAW   OF    PARTITION. 

an  adverse  possession,  unless  it  has  been  continued  to 
bar  a  recovery  under  the  statutes  of  limitations.  "  An 
erroneous  computation  or  inaccuracy  of  the  commis- 
sioners may  be  corrected  by  the  final  judgment.  " 

64  Howey  v.  Goings,  13  111.  95, 

65  Wright  V.  Marsh,  2  Greene,  94. 


CHAPTER  XVIII. 


LIENS. 


The  court  must,  or  at  any  rate,  it  should  in  most 
cases,  before  the  entry  of  the  interlocutory  judgment, 
cause  an  order  to  be  made,  either  with  or  without  appli- 
cation by  a  party  in  interest,  directing  a  reference,  to 
ascertain  whether  there  is  any  creditor,  not  a  party  to  the 
action,  who  has  a  lien  upon  any  part  or  the  whole  of  the 
premises,  or  any  person  who  has  a  lien  upon  any  undi- 
vided interest  in  the  premises  ;  and  the  referee  so  appointed 
shall  report  to  the  court  the  result  of  his  inquiry  pursuant 
to  said  order.  The  court  may  make  an  order  dispensing 
with  such  reference,  when  a  party  to  the  action  produces 
a  search,  certified  by  the  clerk  or  by  the  clerk  and 
register,  as  the  case  may  be,  setting  forth  the  liens  upon 
the  property  ;  and  where  it  appears  by  proof  that  there 
are  no  other  liens,  excepting  those  set  forth  in  such 
search,  or  where  such  certified  search  shows  that  there 
are  no  outstanding  liens  against  the  whole,  or  any  part 
of  the  property  sought  to  be  partitioned  or  sold.* 

a  Before  an  interlocutory  judgment  for  the  sale  of  real  prop- 
■  erty  is  rendered,  in  an  action  for  partition,  the  court  must,  either 
with  or  without  application  by  a  party,  direct  a  reference,  to 
ascertain  whether  there  is  any  creditor,  not  a  party,  who  has  a 
lien  on  the  undivided  share  or  interest  of  any  party.  But  the 
court  may  direct  or  dispense  with  such  reference,  in  its  discretion, 

[2G5] 


266  THE    LAW    OF    PARTITION. 

The  right   of  an  incumbrancer  cannot  be  affected  by 
a  sale  of  lands  in  partition  ;   and,  if  the  lands  are  divided, 
the  lien   of  the    incumbrance,   after  the  division,   will  be 
confined  to  the  share  allotted  to  the  party  against  whom 
the  incumbrance  is  held.     If  the  lands  are  sold,  the  pur- 
chaser will  take  the    premises  subject  to  the  lien  of  the 
incumbrance  upon  the  undivided  share.     But  the  Revised 
Statutes  of  New  York   have   altered    the  law    upon  this 
subject,  and  have  authorized  the  court    to  decree  a   sale, 
which    shall  give   to   the    purchaser   a  perfect  title,  dis- 
charged from  all  liens  and  incumbrances.  '     The  section 
of  the   Revised    Statutes  referred    to    (section    57,  page 
591,  volume  3),  provides  for  the  payment  of  such  incum- 
brancers.    Where  the  land  is  to  be  sold,  it  is  necessary 
in  order    to   effect    division  among   those    entitled,    and 
where  there  are    no  incumbrances    upon    the   land  and 
there  are  questions  as  to  the  extent  of  the  liens   by   rea- 
son of  such  incumbrance,  the   court  may,  either  before 
decree  or  before  sale,  direct  that  the  amount   of  the  in- 
cumbrances be    ascertained.'     A  creditor  of  a  deceased 
person,  who  has  not  a  judgment  lien  on  the  land  of  the 
deceased,  cannot  be  made  a  party-to  the  suit  for  a  parti- 
tion brought  for  the  purpose  of  dividing  the  real  estate 
among  the  heirs  and  devisees."     Unless  the  statutes  and 
the  rules  of  practice  of  the  State  in  which    the  partition 

where  a  party  produces  a  search,  certified  by  the  clerk,  or  by  the 
clerk  and  register,  as  the  case  requires,  of  the  county  where  the 
property  is  situated  ;  and  it  appears  therefrom,  and  by  the  affi- 
davits, if  any  produced  therewith,  that  there  is  no  such  outstand- 
ing lien.     N.  Y.  Code  Civ.  Pro.  §  1561. 

1  Harwood  v,  Kirby,  i  Paige,  469.     See  i   Hopk.  501. 

2  Thurston  v.  Minke,  32  Md.  574- 

3  Waring  v.  Waring,  3  Abb.  Pr.  246.  See  i  Bland,  51.    Contra, 
14  N.  J.  Eq.  240. 


LIENS.  267 

action  is  brought  direct  to  the  contrary,  an  incumbrancer 
is  not  a  necessary  party  defendant,  because  relief  cannot 
be  decreed  as  against  him,  and  the  action  can  in  no  way 
affect  his  incumbrance  or  change  his  Hen,  except  it  be  a 
lien  against  an  undivided  portion  of  the  premises,  and  in 
such  case,  after  a  division,  it  becomes  a  lien  against  that 
part  of  the  premises  allotted  to  the  co-tenant  against 
whom  the  judgment  or  lien  has  been  perfected.* 

In  case  of  a  sale  of  the  property,  it  is  evident  that  it  is 
the  duty  of  the  court  to  do  that  which  is  necessary  for 
the  protection  of  the  purchaser  of  the  property.  The 
purchaser  should  know  what  liens  are  upon  the  property, 
or  else  there  should  be  given  to  him  a  clear  title,  free 
and  clear  from  any  or  all  incumbrances,  and  in  case  such 
a  title  is  given  to  him,  the  court  should  see  that  the  inter- 
ests of  the  lienholders  are  protected  as  well  as  that  of  the 
purchaser,  and  that  the  lienholders  out  of  the  purchase- 
money  receive  compensation  for  their  liens.  It  is  not  the 
business  of  the  court  to  draw  itself  into  a  discussion  of 
various  conflicting  rights  that  might  be  claimed  by  those 
holding  incumbrances,  and  it  is  held,  that  the  true  rule 
w^as  that  no  persons  should  be  made  parties,  except  those 
having  a  present  interest  in  the  premises.  In  one  com- 
mon law  case  decided  in  the  New  York  courts,  it  was 
held,  that  judgment  creditors  and  other  incumbrancers 
were  not  proper  parties  to  the  bill  for  partition,  even 
where  a  sale  of  the  premises  is  decreed  ;  and  where  they 
were  made  parties,  in  such  case,  by  supplemental  bill, 
it  was   held,  that  such   supplemental   bill   should  be  dis- 

4  Low  z/.  Holmes,  17  N.  J.  Eq.  150;  Speer  z/.  Speer,  McCart- 
ner  Ch.  251  ;  i  Ves.  &  B.  551  ;  7  Johns.  Ch.  141  ;  22  Am.  Dec. 
375  ;  81  Penn.  St.  122.  Contra,  McDongall  v.  McDongall,  14 
Grant  Ch.  267. 


268  THE    LAW    OF    PARTITION. 

missed/  At  this  time  the  law  in  England  was  that  the 
property  should  always  be  divided,  unless  a  compromise 
should  take  place.  No  power  existed  there  to  order  a 
sale  of  the  premises.  Undoubtedly,  the  decision  of  the 
chancellor  above  referred  to  was  based  somewhat  upon 
the  English  law  allowing  no  sale,  as  in  the  opinion,  his 
argument  seemed  to  be  from  that  standpoint,  and  his 
decision  is  based  upon  the  ground  that  the  partition  could 
in  no  way  aftect  those  who  had  or  held  liens  upon  the 
lands,  or  that  they  had  no  present  interest  or  estate  in 
the  premises."  If  no  means  were  provided  by  which  liens 
could  be  brought  to  the  notice  of  the  court  in  such  cases,  a 
great  unjustice  might  be  done  to  those  who  are  purchas- 
ers of  the  premises,  or  to  those  who  hold  such  incum- 
brances. Liens  against  a  co-tenant's  interest  should  be 
brought  to  the  notice  of  the  court,  if  not,  the  lands  would 
be  sold  at  a  sacrifice  owing  to  the  fact  that  the  title  of 
the  purchaser  would  be  something  like  a  lottery,  he  not 
knowing  whether  what  he  got  was  good  for  anything  or 
not,  or  whether  his  investment  would  prove  to  him  a  loss 
or  not. 

The  present  statutes  of  New  York  contemplate  that 
such  incumbrance  shall  be  brought  to  the  attention  of 
the  court,  and  allow  persons  having  a  hen  or  interest 
which  attaches  to  the  entire  property,  to  be  made  de- 
fendants in  the  action,  and  provide  in  section  1561  of  its 
Code  above  referred  to,  for  a  reference  to  inquire  into  the 
facts  and  circumstances  pertaining  to  liens  upon  the  un- 
divided portions  of  the  property.  In  Pennsylvania  a  sale 
in  partition  is  like  other  judicial  sales  in  that  State,  and 

5  Sebring  v.  Mersereau,  9  Cow.  344. 

6  Baring  z/.  Nash,  i  V.  &  B.  551  ;  VVotten  v.  Copeland,  7  Johns. 
Ch.  141,     See  i  Paige,  487 ;  i  Hopk.  501. 


LIENS.  269 

transfers  the  property  to  the  purchaser  free  from  all  liens/ 
But,  after  the  sale,  the  lien  remains  upon  the  moneys 
realized  from  the  sale.'  The  referee,  appointed  by  the 
court,  will  take  proof  in  respect  to  the  liens,  and  to  their 
extend  and  validity,  whether  those  liens  are  disclosed  by 
the  pleadings  or  not.  Where  actual  partition  cannot  be 
made,  and  a  sale  is  decreed,  the  question  as  to  the  dis- 
tribution of  the  proceeds  of  the  sale  of  any  undivided 
share  of  the  premises  between  the  owner  and  incum- 
brancers is  collateral  to  the  main  purpose  of  the  action  ; 
the  court,  having  jurisdiction  of  the  fund,  adjudges  how 
distribution  shall  be  made.  Where,  therefore,  in  accord- 
ance with  the  practice,  an  order  of  reference  is  granted 
directing  the  referee  to  ascertain  and  report  the  amount 
due  to  any  party  to  the  action  who  has  any  general  or 
specific  lien  upon  the  premises,  the  referee  is  authorized 
to  take  proof  and  pass  upon  the  validity  of  the  mortgage 
upon  an  undivided  share,  claimed  by  one  of  the  parties, 
although  the  question  is  not  raised  by  any  formal  issue  in 
the  pleadings."*  An  order  for  a  sale  of  the  premises  may 
be  made  without  a  reference  to  the  clerk  to  search  for 
liens  and  incumbrances,  unless  such  reference  is  asked  for 
by  one  of  the  parties.'"  Judgments  and  decrees  do  not 
cease  to  be  a  lien  as  against  heirs  at  law  at  the  end  of 
ten  years.  The  parties  to  such  action  who  choose  to  omit 
the  ordinary  advertisement  should  produce,  at  their  own 
cost,  regular  searches  for  all  judgments  and  decrees  for  at 
least  twenty  years.     A   purchaser   under   a   partition  sale 

7  Gerard  Life  Ins.  Co.  z/.  F.  &  M.  Bank,  57  Penn.  St.  394  ;  23  Id. 
477;  27  Id.  473;  67  Am.  Dec.  485. 

8  Henry  v.  Auld,  8  Va.  L.  J.  54. 

0  Halsted  v.  Halsted,  55  N.  Y.  442. 

10  Gardner  v.  Luke,  12  Wend.  269  ;  26  Barb.  478. 


270  THE    LAW    OF    PARTITION. 

by  the  heirs  at  law  is  not  bound  to  take  an  affidavit  of 
the  administrator  or  any  other  person,  that  there  are  no 
debts  of  the  deceased  ;  he  is  entitled  to  have  the  fact 
made  out  beyond  all  reasonable  doubt  that  there  no 
debts  or  liabilities  of  any  kind  of  the  deceased,  for  which 
there  is  any  risk  that  the  property  may  be  sold,  whether 
those  debts  are  his    own,  or  as  surety,  or   contingent." 

The  purchaser,  not  a  tenant  in  common,  cannot  object 
to  the  validity  of  the  sale  on  the  ground  that  he  was  not 
made  a  party  to  the  proceedings — he  holding  a  deed  of 
the  premises  purchased  pending  the  action  from  some 
one  or  more  of  the  heirs,  defendants  in  the  partition  suit  ; 
and  it  is  not  necessary  that  the  referee  in  such  proceed- 
ings advertise  for  liens.  Such  notice  is  not  necessary  to 
be  published  unless  by  advice  of  the  court,  or  it  is  required 
by  some  one  or  more  of  the  parties  to  the  suit." 

Where  the  reference  is  directed,  as  prescribed  by  sec- 
tion 1 561  of  the  New  York  Code,  it  is  the  duty  of  the 
referee  to  cause  a  notice  to  be  published,  once  in  each 
week  for  six  successive  weeks,  in  the  newspaper  printed 
at  Albany,  in  which  legal  notices  are  required  to  be  pub- 
lished, and  also  in  a  newspaper  published  in  each  county 
where  the  property  is  located,  requiring  each  and  every 
person,  not  a  party  to  the  action,  who  has  a  lien  upon 
any  undivided  share  or  interest  in  the  property,  to  appear 
before  the  referee  at  a  specified  time  and  place,  and  estab- 
lish his  claim  or  lien,  and  the  true  amount  due  or  to 
become  due  upon  the  same.  The  referee  must  render  his 
report  to  the  court,  with  all  convenient  speed,  in  which 
he  reports  the  name  of  each  creditor,  and  the  extent  of 

11  Hall  ??.  Partridge,  10  How.  Pr.  188.  See  12  Wend.  269; 
4  Paige,  481  ;  i  Edw.  565. 

12  Noble  t^.  Cromwell  27  How.  Pr.  289,  a7ite.    See  6  Abb.  Pr.  63. 


LIENS.  271 

such  creditor's  lien,  which  has  been  satisfactorily  proved 
before  him,  giving  the  amount  due  or  to  become  due  upon 
such  lien.^ 

Where  notice  has  been  given  to  creditors  having 
general  liens  upon  the  undivided  interest  of  one  of  the 
parties  in  a  partition  suit  to  come  in  and  establish  their 
claims  before  the  master,  tlie  lien  of  such  creditors  upon 
the  estate  will  be  divested  by  the  sale;  a  purchaser  at  the 
sale  under  the  decree  cannot  therefore  object  that  the 
master  has  decided  wrong  as  to  the  extent  of  such  a  lien. 
If  the  master  improperly  rejects  the  claim  of  a  creditor 
coming  in  under  the  notice  in  a  partition  suit,  as  to  his 
lien  upon  the  premises,  the  claimant  must  except  to  the 
master's  report,  if  he  wishes  to  preserve  his  lien  upon  the 
purchase  money  for  which  the  premises  are  to  be  sold 
under  the  decree.  The  purchaser  cannot  object  to  the 
title  merely  on  the  ground  that  there  is  a  possibility  that 
some  person,  other  than  the  parties  to  the  suit,  has  an 
interest  in  the  premises,  where  there  is  no  probability 
that  any  such  interest  exists.  It  is  an  established  rule, 
both   at   law   and   in   equity,  that  a  mortgage  is  not  evi- 

^  Where  a  reference  is  directed,  as  prescribed  in  the  last  sec- 
tion, the  referee  must  cause  a  notice  to  be  published,  once  in  each 
week  for  six  successive  weeks,  in  the  newspaper  printed  at  Albany, 
in  which  legal  notices  are  required  to  be  published,  and  also  in  a 
newspaper  published  in  each  county  wherein  the  property  is  situ- 
ated, requiring  each  person,  not  a  party  to  the  action,  who,  at  the 
date  of  the  order,  had  a  lien  upon  any  undivided  share  or  interest 
in  the  property,  to  appear  before  the  referee,  at  a  specified  place, 
and  on  or  before  a  specified  day,  to  prove  his  lien,  and  the  true 
amount  due  or  to  become  due  to  him  by  reason  thereof.  The 
referee  must  report  to  the  court,  with  all  convenient  speed,  the 
name  of  each  creditor,  whose  lien  is  satisfactorily  proved  before 
him,  the  nature  and  extent  of  the  lien,  the  date  thereof,  and  the 
amount  due  or  to  become  due  thereupon.     N.  Y.  Code  Civ.  Pro. 


272  THE    LAW    OF    PARTITION. 

dence  of  a  subsisting  title  or  interest  in  the  mortgagee,  if 
he  has  never  entered  under  his  mortgage,  and  no  interest 
has  been  paid  thereon  for  more  than  twenty  years,^' 

Where  the  interest  of  one  of  the  defendants  in  the 
premises,  in  a  partition  suit,  is  sold  under  a  judgment  at 
law  against  him  subsequent  to  the  filing  of  the  complain- 
ant's bill  and  the  notice  of  the  pendency  of  the  suit  for 
partition,  the  purchaser  must  come  in  before  the  master 
and  prove  his  claim,  under  the  order  of  reference  as  to 
general  liens ;  as  his  interest  in  the  premises  will  be 
divested  by  a  sale  under  the  decree."  The  referee  in  the 
performance  of  his  duties  should  not  only  inquire  as  to 
the  liens  upon  the  share  of  each  party  to  the  action,  but 
should  in  addition  cause  searches  of  the  records  to  be 
made  in  the  same  manner  as  if  he  was  making  a  careful 
examination  of  the  title.  These  searches  are  generally 
furnished  by  the  attorney  who  conducts  the  action  on 
behalf  of  the  plaintiff.  The  referee  has  a  right  to  require 
that  an  abstract  of  the  title  shall  be  laid  before  him, 
and,  when  necessary,  he  should  be  furnished  with  an  affi- 
davit as  to  deaths,  descents,  intestacy,  probate  and  record 
of  wills,  and  any  other  matter  that  may  be  necessary  to 
assist  him  in  the  performance  of  his  duties  pursuant  to 
the  order  of  reference.  He  should  summon  before  him 
such  persons  as  he  may  ascertain  are  creditors,  and  get 
from  them  their  statements.  His  inquiries  should  be 
directed  both  as  to  persons  and  facts.  The  inquiry  as  to 
the  creditors  is  absolutely  required  by  the  statute.'* 

13  Dunham  v.  Minard,  4  Paige,  440.  See  10  Abb.  N.  C.  46  ;  5 
Johns.  Ch.  552. 

1*  Spring  2/.  Sandford,  7  Paige,  550.  See  11  Abb.  Pr.  381  ;  10 
How.  Pr.  188;  27  Id.  389. 

15  Wilde  V.  Jenkins,  4  Paige,  481 ;  Van  Sant.  Eq.  Pr.  543. 


LIENS.  2  -JTy 

That  able  law  writer,  William  Wait,  upon  this  subject 
says  :  "  Before  making  an  order  for  the  sale  of  the  prem- 
ises,where  the  creditors  having  specific  liens  shall  not  have 
been  made  parties,  the  court,  upon  the  motion  of  either 
party,  shall  direct  the  plaintiff  to  amend  his  complaint, 
by  making  every  creditor  having  a  specific  lien  on  the 
undivided  estate  of  any  of  the  parties,  by  mortgage, 
devise,  or  otherwise,  a  party  to  the  proceedings.  In  such 
case  the  court  will  order  a  reference  to  the  clerk  or  some 
other  suitable  party,  to  ascertain  and  report  whether  the 
shares  or  interests  in  the  premises  of  the  parties  to  the 
action,  or  any  of  them,  are  subject  to  a  general  lien  or 
incumbrance  by  judgment  or  decree."''  The  reference  is 
not  absolutely  necessary,  and  may  be  omitted  unless 
asked  for  by  one  or  more  of  the  parties  to  the  action." 

It  has  been  held  that  the  advertisement  required  by 
the  Code  is  not  a  necessity.  If  there  are  no  general  liens, 
it  is  useless  to  incur  the  expense  of  such  advertisement. 
If  the  parties  to  the  action  know  that  there  are  no  general 
liens  and  no  such  liens  as  set  forth  in  section  1561,  and 
produce  before  the  court,  or  referee,  satisfactory  proof 
to  that  effect,  the  advertisement  may  be  dispensed  with. 
Then  there  may  be  a  further  reason  for  dispensing  with  such 
advertisement,  and  that  is  to  avoid  the  delay  caused  by 
it,  and  the  expense  and  delay  can  be  avoided,  seeing  as 
the  same  will  result  in  no  good  to  those  in  interest."  If 
such  advertisement  is  omitted,  inasmuch  as  judgments 
and  decrees  do  not  cease  to  be  a  lien  against  heirs  at  law 

18  N.  Y.  L.  1847,  ch.  280,  §  77  ;  "Wait  Pr.  117. 

17  12  Wend.  269;    10  How.  Pr.  188;  27  Id.  289;    6   Abb.  59;  3 
Abb.  Ct.  App.  382. 

18  Hall  V.  Partridge,  10  How.  Pr.  188,  anie  ;  Alvord   v.  Beac'.i. 
5  Abb.  Pr.  451. 

18 


2  74  THE     LAW    OF    PARTITION. 

at  the  end  of  ten  years,  the  parties  to  the  action  who 
choose  to  have  such  advertisement  omitted  should,  at 
tlieir  own  cost  and  expense,  produce  regular  searches  for 
all  judgments  and  decrees  for  at  least  twenty  years 
back."  If  it  appears  by  the  pleadings,  or  otherwise,  that 
there  was  any  existing  lien  upon  the  share  or  interest  of 
a  party  in  the  property  at  the  date  of  the  order,  the 
interlocutory  judgment  should  direct  that  the  officer  mak- 
ing the  sale  and  receiving  the  money  thereon  arising  from 
such  sale,  shall  pay  into  court  the  portion  of  the  money, 
arising  from  the  sale  of  the  share  or  interest  of  that 
party,  after  deducting  the  costs  and  expenses  for  which 
he  is  liable."  When  the  amount  of  existing  incumbrances 
shall  have  been  ascertained,  the  court  sha:ll  proceed  to 
order  a  distribution  of  the  moneys  so  brought  into  court 
as  aforesaid  and  remaining  therein,  among  the  several 
creditors  having  incumbrances  upon  the  property  or  the 
share  and  interest  of  the  property.  Such  distribution  to 
be  made  according  to  the  priority  of  such  incumbrances.** 
Application  may  be  made  for  the  money  so  paid  into 
court  in  accordance  with  the  sections  of  the  Revised  Stat- 
utes 44  to  47  inclusive,  above  referred  to,  and  payment  had 
thereon  according  to  the  priority  of  the  liens  or  incum- 
brances established.  The  applicant  in  making  such  applica- 
tion must  produce  his  own  affidavit,  or,  if  there  is  reason  for 

19  5  Wait  Pr.  119. 

'  If  it  appears  by  the  pleadings,  or  by  the  evidence  in  the  action, 
or  by  the  report,  that  there  was,  at  the  date  of  the  order,  any 
existing  lien  upon  the  share  or  interest  of  a  party  in  the  property, 
the  interlocutory  judgment,  directing  the  sale,  must  also  direct  the 
officer  making  it  to  pay  into  court  the  portion  of  the  money,  aris- 
ing from  the  share  or  interest  of  that  party,  after  deduqtmg  the 
portion  of  the  costs  and  expenses  for  which  it  is  liable.  N.  Y. 
Code  Civ.  Pro.  ^  1563. 

21^  See  sec.  44  to  47  inclusive,  N.  Y.  R.  S.  p.  591,  3  vol.  6  ed. 


LIENS.  275 

not  producing  his  own  affidavit,  then  that  of  his  agent  or 
attorney,  stating  the  amount  actually  due  on  each  incum- 
brance, and  the  name  and  residence  of  the  owner  of  the 
incumbrance,  so  far  as  known  to  him,  or  so  far  as  he  has 
been  able  to  ascertain  after  due  diligence  upon  his  part. 
He  shall  also  show  by  affidavit,  service  of  a  notice  of  the 
application  upon  each  owner  of  an  incum.brance  ;  and  the 
service  within  the  State  of  New  York  must  be  personal, 
or  by  leaving  a  true  order  of  such  application  at  the  own- 
ers' place  of  residence,  with  some  person  of  mature  age 
and  discretion,  at  least  fourteen  days  previous  to  the 
application.  If  service  should  be  made  outside  of  the 
State,  twenty  days'  notice  must  be  given.  If  the  owner 
of  the  incumbrance  resides  without  the  State,  and  his  true 
place  of  residence  cannot  be  found  by  fair  and  reasonable 
diligence,  such  notice  may  be  served  upon  him  by  publish- 
ing the  same  in  the  newspaper,  or  newspapers,  in  which 
such  legal  notices  are  required  to  be  printed  ;  and  the 
court  upon  application  must  make  such  order  as  the  just- 
ice of  the  case  requires.** 

The  court  may,  of  its  own  motion,  or  upon  the  applica- 

^  Where  money  is  paid  into  court,  in  a  case  sf>ecified  in  the 
last  section,  the  party  may  apply  to  the  court  for  an  order  direct- 
ing that  the  money,  or  such  part  thereof  as  he  claims,  be  paid  to 
him.  Upon  such  an  application,  he  must  produce  the  following- 
papers  : 

1.  An  affidavit,  made  by  himself,  or,  if  a  sufficient  excuse  is 
shown,  by  his  agent  or  attorney,  stating  the  true  amount  actually 
due  on  each  incumbrance,  and  the  name  and  residence  of  the 
owner  of  the  incumbrance,  as  far  as  they  are  known,  or  can  be 
ascertained  with  due  diligence. 

2.  An  affidavit,  showing  service  of  a  notice  of  the  application 
upon  each  owner  of  an  incumbrance.  Service  of  the  notice,  within 
the  State  must  be  personal,  or  by  leaving  it  at  the  owner's  resi- 
dence, with  some  person  of  suitable  age  and  discretion,  at  least 
fourteen  days  previous  to  the  application.      Service,  without  the 


276  THE    LAW    OF    PARTITION. 

tion  of  either  party,  without  the  consent  of  the  other, 
direct  a  reference  to  take  an  account,  and  report  to  the 
court  thereon,  either  with  or  without  the  testimony,  after 
interlocutory  or  final  judgment,  or  where  it  is  necessary 
to  do  so,  for  the  information  of  the  court  ;  and  also  to 
determine  and  report  upon  a  question  of  fact,  arising  in 
any  stage  of  the  action,  upon  a  motion,  or  otherwise, 
except  upon  the  pleadings."' 

The  court  has  control  of  the  funds  arising  from  the 
sale  in  partition  until  they  are  distributed  according  to 
its  order,  and  the  funds  derived  from  the  sale  of  the  share 
lOr  interest  of  such  co-tenant  against  whose  share  there  is 
an  incumbrance,  remain  in  the  custody  of  the  court  after 
the  same  has  been  paid  therein,  until  all  questions  per- 
taining to  such  liens  or  incumbrances  shall  have  been 
fully  settled,  and  then  shall  direct  a  distribution  of  such 
funds  paying  the  same  out  upon  the  liens  that  have  been 
established  in  accordance  with  the  law  and  practice  ; 
paying  upon  the  liens,  according  to  the  priority  of  each. 
Where  the  incumbrancer  is  not  a  party  to  the  action,  the 
clerk,  master,  commissioner,  referee,  or  other  officer,  by 
whom  the  lien  is  paid  off,  must  cause  such  lien  to  be  duly 
satisfied.     The  expense  of  so  doing  must  be  paid  out   of 


State,  if  personal,  must  be  made  at  least  twenty  days  previous  to 
the  application.  If  the  owner  of  the  incumbrance  resides  with- 
out the  State,  and  the  place  of  his  abode  can  not  be  ascertained, 
with  reasonable  diligence,  notice  may  be  served  upon  him  by  pub- 
lishing it  in  the  newspaper  printed  at  Albany,  in  which  legal 
notices  are  required  to  be  published,  once  in  each  week  for  the 
four  weeks  immediately  preceding  the  application. 

Upon  the  application,  the  court  must  make  such  an  order  as 
justice  requires.     N.  Y.  Code  Civ.  Pro.  §  1564. 

21  N.  Y.  Code  Civ.  Pro.  g  1015  ;  24  How.  Pr.  409  ;  2  Hilt.  130  ;  i 
Hun,  41  ;  14  How.  Pr.  443;  2  Abb.  Pr.  411. 


LIENS.  277 

the  portion  of  the  money  in  court,  belonging  to  the  party 
by  whom  the  incumbrance  was  payable.^  The  final  judg- 
ment is  a  bar  against  each  person,  not  a  party,  who  has, 
at  the  time  when  it  is  rendered,  a  general  lien  by  judg- 
ment or  decree  on  the  undivided  portion  of  any  co-tenant, 
if  notice  was  given  to  such  owner  of  such  lien  to  appear 
before  the  referee,  and  make  the  proof  required  as  afore- 
said." The  proceedings  to  ascertain  and  settle  the  liens, 
as  prescribed  by  sections  1563,  1564,  1565,  shall  not  affect 
any  other  party  to  the  action,  or  delay  the  paying  over  or 
investing  of  money,  to  or  for  the  benefit  of  any  other 
party,  upon  whose  share  or  interest  there  are  no  existing 
liens.^ 

If  the  referee,  in  a  partition  suit,  make  an  erroneous 
report  that  the  share  of  a  party  is  subject  to  a  certain 
judgment,  the  error  can  not  be  corrected,  where  there  is 

•  When  the  whole  amount  of  the  unsatisfied  liens  upon  an 
undivided  share,  which  were  existing  at  the  date  of  the  order  of 
reference,  has  been  ascertained,  the  court  must  order  the  portion 
of  the  money  so  paid  into  court,  on  account  of  that  share,  to  be 
distributed  among  the  creditors  having  the  liens,  according  to  the 
priority  of  each  of  them.  Where  the  incumbrancer  is  not  a  party 
to  the  action,  the  clerk,  or  other  officer,  by  whom  a  lien  is  paid 
off,  must  procure  satisfaction  thereof  to  be  acknowledged  or 
proved,  as  required  by  law,  and  must  cause  the  incumbrance  to 
be  duly  satisfied  or  canceled  of  record.  The  expense  of  so  doing 
must  be  paid  out  of  the  portion  of  the  money  in  court,  belonging 
to  the  party,  by  whom  the  incumbrance  was  payable.  N.  Y.  Code 
Civ.  Pro.  ^  1565. 

^2  N.  Y.  Code  Civ.  Pro.  §  1578;  N.  Y.  Laws  1830.  ch.  320,  §  45. 

'  The  proceedings  to  ascertain  and  settle  the  liens  upon  an 
undivided  share,  as  prescribed  in  the  last  three  sections,  shall  not 
affect  any  other  party  to  the  action,  or  delay  the  paying  over  or 
investing  of  money,  to  or  for  the  benefit  of  any  other  party,  upon 
whose  share  or  interest  in  the  property  there  docs  not  appear  to 
be  any  existing  lien.  N.  Y.  Code  Civ.  Pro.  §1560;  2  N,  Y.  R.  S. 
ch.325,  U9. 


278  THE    LAW    OF    PARTITION. 

no  exception  taken  to  the  report."  The  report  must  be 
excepted  to  in  due  season  to  preserve  the  rights  of  the 
incumbrancers.'' 

23  Scott  V.  Howard,  3  Barb.  319. 

24  4  Paige,  442,  anU. 


CHAPTER    XIX. 


DOWER. 


There  is  no  dower  in  cases  of  joint-tenancy,  because 
there  is  no  estate  that  remains  in  the  heirs  or  next  of  kin 
of  the  deceased.  When  a  joint-tenant  dies,  the  title  to 
his  real  estate  passes  immediately  to  his  survivor  or 
survivors,  and  his  co-tenants,  such  survivors,  are  instantly 
seized  of  the  whole  estate.  His  heirs  can  claim  no  part 
of  the  property  by  reason  of  heirship  ;  the  estate  beini; 
defeated  by  survivorship  prevents  the  wife  from  having 
any  dower.  '  In  some  States,  dower  in  the  lands  of  joint- 
tenants  is  allowed  by  statute.  ^  The  widow  has  no  dower 
from  her  husband,  who  was  a  joint-tenant,  for  the  same 
reason  that  a  joint-tenant  cannot  divest  the  estate  held 
by  him  as  such,  as  there  is  no  estate  after  his  death  to 
operate  upon,  and  such  devise  has  no  effect.  '  The  right 
of  survivorship  is  as  good  as  a  right  by  descent ;  and  it 
was  at  one  time  considered  that  there  was  nothing 
unreasonable  or  unequal  in  the  law  of  joint-tenancy,  each 
joint-tenant  having  a  chance  to  survive  his  fellow  co- 
tenant  :  and  the  duration  of  all  lives  being  uncertain,  and 

1  Mayburry  v.  Brien,T5  Pet.  37. 

2  James  z/.  Rowan,  6Smedes&  M.  393. 

3  Duncan  z/.  Forrer,  6  Binn.  197.  See  Powell  on  Devises,  116; 
Swift  2/.   Roberts,  Amb.  617;  i  Blackst.  476. 

[279J 


28o  THE    LAW    OF    PARTITION. 

the  right  that  either  tenant  had  to  sever  the  co-tenancy 
by  conveyance  ;  so  that  it  was  considered,  that  lands 
held  to  parties  by  survivorship  was  no  hardship  to  any  of 
the  parties  in  interest,  but  in  this  it  is  doubtful  whether 
the  English  courts  took  into  consideration  the  fact  that 
it  might  be  a  hardship  to  the  widow,  who  could  receive 
no  dower  whatever  by  reason  of  the  survivorship.  * 
Wherever  survivorship  has  been  abolished  by  statute,  the 
only  obstacle  to  the  wife  obtaining  dower  has  been  re- 
moved. In  some  States  those  statutes  exist,  and  where 
such  is  the  case,  the  dower  of  the  widow  is  as  fully  recog- 
nized as  though  her  husband's  estate  had  been  that  of  a 
tenant  in  common.  * 

But  where  the  lands  are  held  in  common,  the  wife  has 
a  dower  in  that  portion  held  by  her  husband  in  his  life- 
time, and  in  case  of  a  partition  of  the  lands,  her  dower  is 
confined  to  that  portion  of  the  land  allotted  to  her  hus- 
band. At  common  law,  a  widow  entitled  to  dower  did 
not  have  an  estate  in  the  premises  until  the  assignment. 
She  was  not  entitled  to  a  joint  possession  with  the  heirs, 
and  was  not  a  tenant  in  common.  ^  The  statutory  law 
has  changed  the  common-law  rule,  and  the  widow,  upon 
the  death  of  her  husband,  has  a  right  to  the  possession  of 
one-third  of  his  real  estate.  That  possession  makes  her 
a  tenant  in  common  with  the  heirs,  and  her  right  as  such 
tenant  in  common,  or  her  right  of  entry  and  possession, 
does  not  depend  upon  the   assignment  of  dower,  for  that 

*  Cray  v.  Willis,  2  Peere  Wms.  529 ;  Staples  ^',  Maurice,  17 
Bro.  P.  C.  49  ;  i  Eq.  Cas.  243 ;  2  Id.  457,  458,  537  ;  3  P.  Wms.  1 1 5. 

^Holbrook?^,  Finney,  4  Mass.  568;  9  Dana,  185;  4lred.  Eq. 
Cas.  277  ;  3  Am.  Dec.  243. 

6  4  Kent  Comm.  62. 


DOWER.  28 1 

is  a  mere  severance  of  the  common  estate  '     A  tenant  in 
common  can  pass  his  property  by  bequest.  ' 

The  husband  has  no  power  in  a  voluntary  partition  to 
charge  the  wife's  dower.  While  the  husband  is  a  tenant 
in  common,  the  wife  has  a  dower  in  that  which  he  holds 
in  co-tenancy.  As  soon  as  a  division  of  the  land  is  had, 
even  though  that  division  is  by  the  tenants  themselves  of 
their  own  property,  the  husband  acquires  a  sole  seizin  of 
that  part  allotted  to  him,  and  the  wife's  dower  immedi- 
ately attaches  to  such  allotment,  and  she  has  no  right  of 
dower  in  any  of  the  other  parts  of  the  lands  of  the  joint- 
tenancy.  If  the  husband  is  a  tenant  in  common,  the 
dower  right  of  the  wife  is  not  dependent  upon  the  mak- 
ing of  partition  of  the  premises.  That  dower  right  exists 
prior  to  such  partition.  One  who  is  in  possession  of  real 
estate  does  not  become  a  tenant  in  common  thereof 
merely  by  accepting  a  deed  from  the  owner  of  an  undi- 
vided interest  therein.  "^  The  dower  of  the  wife  is  not 
paramount  to  the  rights  of  the  co-tenants  of  her  husband 
so  as  to  compel  a  partition,  and  it  does  not  in  any  respect 
interfere  with  or  impair  her  husband's  authority  to  make 
a  valid  partition  by  deed  or  agreement  ;  and  such  parti- 
tion, made  valid,  may  not  divide  the  whole  of  the  prop- 
erty held  by  the  tenants  in  common  and  may  or  may  not 
create  a  new  tenancy.  Whenever  the  husband  makes  a 
voluntary  partition,  it  is  supposed  that  the  dower  interest 
of  the  wife  is  removed  from  all  the  other  property,  and  it 
is  confined  only  to  that  portion  taken  by  her  husband,  as 


■^  Crocker  v.  Fox,  i  Root,  323 ;  Stedman  v.  Fortune,  5  Conn. 
462.     See  2  Mo.  163  ;  4  Ind.  215. 

8  I  P.  Wnis.  700;  5  Ves.  744 ;  2  Ired.  Eq.  330. 
^^  13  Johns.  406. 


282  THE    LAW    OF    PARTITION. 

his  share  of  the  co-tenancy,  '  The  husband  cannot  make 
a  voluntary  partition  for  the  purpose  of  destroying  his 
wife's  rights  and  defrauding  her  of  that  which  is  given  to 
her  by  the  law,  and  in  case  the  husband  should  attempt  to 
make  a  partition  to  defraud  his  wife,  the  wife  would  not  be 
bound  by  his  act.  Where  heirs  agree  upon  an  amicable  di- 
vision and  pass  mutual  and  confirmatory  deeds  of  release, 
it  is  no  objection  to  a  title  against  one  heir  and  his  wife 
that  the  wives  of  any  other  of  the  heirs  did  not  join  in  a 
release  :  they  would,  on  an  assertion  of  right  of  dower, 
be  restricted  to  their  husband's  undivided  share.  Nor,  in 
such  a  case,  where  one  heir  was  dead  at  the  time  of  the 
partition  and  execution  of  the  releases,  but  a  share  was  set 
aside  for  his  representatives,  and  his  widow  survived  and 
confirmed  the  same,  could  it  be  considered  an  objection 
to  title  that  she  might  be  dowable  as  out  of  t'he  whole 
descendible  property  as  undivided.  "  All  persons,  who 
may  have  had  any  claim  or  interest  whatever  in  the  parti- 
tion suit,  and  who  were  parties  to  it,  were  bound  by  the 
decree,  and  could  not  at  a  later  day  and  in  another  action 
take  advantage  of  any  irregularity  relative  to  the  widow's 
dower,  or  any  other  matter  that  was  passed  upon  in  the 
partition  suit,  as  that  decree,  allowed  to  rest  without 
any  appeal,  is  final  and  binding.  "  If  the  husband,  who 
is  a  co-tenant,  conveys  his  interest  in  the  property  to 
other  parties,  and  the  wife  does  not  join,  though  perhaps 
such  conveyance  may  not  be  made  for  the  purpose  of 
defrauding  the  wife  of  her  right  of  dower,  her  dower  yet 
remains  in  the  premises  and  cannot  be  disturbed.      One 

9  Potter  V.  Wheeler,  13  Mass.  506  ;    Jackson  v.    Edwards,  22 
Wend.  512.     See  22  Mo.  203  ;  64  Am.  Dec.  262  ;  3  Paige,  658. 

10  Totten  V.  Stuyvesant,  3  Edw.  Ch.  527.     See  18  Wend.  257. 

11  10  Paige,  399  ;  8  N.  Y.  448. 


DOWER.  283 

reason  for  this  is  that  the  husband  has  parted  with  all  his 
interest  in  the  co-tenancy,  while,  where  there  is  a  volun- 
tary partition  made,  the  co-tenancy  is  divided  and  each 
co-tenant's  interest  therein  becomes  separate,  he  owning 
that  interest  in  severalty.  If  the  husband  deeds  to  a  third 
party,  who  is  a  stranger  to  the  joint-tenancy,  his  wife  not 
joining  in  the  deed,  and  thereafter  dies,  then,  if  the  co- 
tenants  should  partition  and  divide  the  land  up  among 
themselves,  the  dower  of  the  wife  would  not  follow  that 
portion  of  the  land  allotted  to  the  one  to  whom  her  hus- 
band deeded,  and  she  could  not  be  compelled  to  confine 
her  claim  to  that  part  of  the  premises  allotted  to  her 
husband's  grantee,  ^^ 

The  question  whether  the  widow  is  a  tenant  in  com- 
mon with  the  co-tenants  of  her  deceased  husband  is  a 
question  which  has  been  to  some  extent  in  dispute  by  the 
courts.  In  some  cases  the  decisions  have  been  that  the 
widow  is  not  regarded  as  a  co-tenant.  "  Other  cases 
seem  to  hold  that  her  right  of  entry  to  the  use,  rents  and 
profits  of  one-third  of  her  husband's  estate  makes  her  a 
co-tenant  with  her  husband's  co-tenants.  ''  The  right  of 
dower  of  the  widow  is  not  a  like  estate  to  the  estate  held  as 
tenants  in  common  by  the  co-tenants  of  her  deceased 
husband's  heirs,  being  an  estate  in  which  she  has  the 
right  to  the  use,  oenefits  and  profits  of  one-third  of  that 
part  of  the  co-tenancy  owned  by  her  husband  in  his  life- 
time ;  and,  undoubtedly,  in  those  States  where  an  action 
of  partition  is  purely  possessory  in  its  nature,  she  having 
a  right  of  entry  and  of  possession,  which  would  undoubt- 

1^  Rank  v.  Hanna,  6  Ind.  20.     See  13  Mass.  506;  32  Me.  414. 
13  Freem.  on  Co-ten.   108,  432. 

1*  See  5  Johns.  80 ;  8  Id.  558  ;  1 5  Id.  321  ;  8  Am.  Dec.  231  ;  16 
Gratt.  267  ;  32  Iowa,  401. 


284  THE    LAW    OF    PARTITION. 

edly  make  her  a  co-tenant  with  her  deceased  husband's 
co-tenants,  so  far  as  they  were  co-tenants  by  rights  of 
possession  and  no  further  ;  but  not  so  far  as  they  were 
co-tenants  by  reason  of  having  a  common  title. 

The  inchoate  right  of  dower  may  subjected  to  either 
voluntary  or  compulsory  partition.  Where  a  person, 
seized  of  land  in  fee,  mortgages  it,  and  afterward  mar- 
ries, his  widow,  on  his  death,  is  entitled  to  dower  out  of 
the  equity  of  redemption.  Where  the  husband  was 
seized  of  land  in  severalty,  the  widow  cannot  proceed 
under  the  Act  for  the  Partition  of  Lands  for  the  purpose 
of  obtaining  her  dower  ;  nor  can  she  be  a  party  to  a 
partition  among  the  heirs,  devisees  or  grantees  of  her 
husband.  Where  her  husband  was  seized  as  joint-tenant, 
or  tenant  in  common  of  land,  the  widow,  as  her  right  of 
dower  extends  only  to  an  undivided  part,  is  a  proper  party 
to  a  partition  among  the  several  joint  owners.  '^  Un- 
der a  voluntary,  as  well  as  under  a  compulsory  parti- 
tion, where  everything  was  done  by  the  co-tenants  for 
the  purpose  of  having  a  proper  and  just  division  of  the 
premises,  and  there  being  no  collusion  or  fraud  among 
the  co-tenants,  no  wrong  could  ordinarily  arise  from  con- 
sidering the  wives  of  the  respective  co-tenants  as  bound 
by  the  allotments  and  divisions  made  by  and  to  their  hus- 
bands, for  notwithstanding  such  allotments,  the  inchoate 
rights  of  dower  retained  by  the  wives  in  the  lands  allotted 
to  their  husbands  in  severalty  was  of  as  much  value  as 
the  rights  of  dower  which  they  had  in    the  lands,   when 

15  Coles  V  Coles,  15  Johns.  319.  See  6  Johns.  290;  7  Id.  278  ; 
8  Johns.  558  ;  7  Cow.  78  ;  i  Wend.  437  ;  5  Id.  616;  14  Id.  66  ;  3 
Den.  219  ;  5  Johns.  Ch.  456  ;  7  Paige,  41 1  ;  10  Id.  54 ;  2  Barb.  Ch.  202; 
42  How.  Pr.  36 ;  2  Bos.  529 ;  2  N.  Y.  Leg.  Obs.  408  ;  35  Cal.  594  ; 
36  Id.  41. 


DOWER.  285 

held  by  their  husbands  in  co-tenancy.  Neither  the  husband, 
nor  the  courts,  nor  any  other  human  power,  can  compel 
the  wife  to  relinquish  her  right  of  dower,  inchoate  though 
-it  may  be,  when  she  is  not  asking  the  aid  of  the  court.  '* 

In  some  States,  the  courts  have  been  disposed  to  treat 
the  sale  of  the  land  in  partition  actions  as  conveying  title 
paramount  to  the  wife's  right  of  dower.  ^''  The  right  of 
dower  in  the  wife  subsists  by  virtue  of  the  seizin  of  the 
husband  ;  and  this  right  of  dower  is  subject  to  any  incum- 
brance, infirmity,  or  incident,  which  the  law  attaches  to 
that  seizin  of  the  husband  either  at  the  time  of  the  mar- 
riage, or  at  the  time  the  husband  became  seized  of  the  prop- 
erty. A  liability  of  the  property  being  sold  by  partition,  is 
an  incident  which  is  affixed  by  law,  and  is  one  of  the 
matters  always  to  be  found  where  there  is  co-tenancy  ; 
and  the  inchoate  right  of  dower  of  the  wife  is  subject  to 
the  partition  suit  ;  and  its  result,  when  the  law  steps  in 
and  divests  the  husband  of  his  seizin,  and  turns  the  real 
property  into  personal  property,  the  wife,  by  the  act  and 
policy  of  the  law,  has  set  apart  to  her  a  distributive  share, 
or  an  interest  in  such  personal  property  as  will  necessarily 
protect  her  in  her  right  of  dower  :  and  that  right  ceases 
to  be  affixed  to  the  land  of  which  her  husband  was  seized, 
and  remains  with  the  proceeds  of  the  sale  of  that  land, 
and  under  the  protection  of  the  court.  The  wife  should 
be  made  a  party  to  the  action  in  order  to  divest  the  land 
of  her  inchoate  right  of  dower,  and  that  such  right  may 
receive  the  protection  that  is  guaranteed  to  it  by  the 
law.  *" 

16  Royston  v.  Royston,  21  Geo.  172  ;  7  Paige  Ch.  391 . 

17  Lee  V.  Lindell,  22  Mo.  202.  See  10  Md.  39  ;  64  Am.  Dec. 
262;  6  Ohio  St.  547  ;  67  Am.   Dec.  355. 

18  Greiner  7/.  Klein,  32  Mich.  17. 


286  THE     LAW   OF    PARTITION. 

The  widow's  right  of  dower  is  g-enerally  regarded  as 
paramount  to  the  right  of  the  heirs  to  compel  partition  ; 
and  she  cannot  be  divested  of  her  dower,  except  by  her 
own  voluntary  act.  ^'  The  right  of  dower  may  be  extinct 
upon  the  sales  of  the  lands,  so  far  as  to  relieve  the  land 
from  it,  leaving  the  right  of  dower  in  the  proceeds  or 
moneys  derived  from  such  sale  ;  but  the  actual  partition 
of  the  premises  can  in  no  way  affect  the  right  of  dower  of 
the  widow  of  the  common  ancestor.  '"  A  married  woman, 
who  is  a  tenant  in  common  of  real  estate,  may  be  made  a 
party  to  an  action  of  partition,  and  her  husband  need  not 
be  joined  with  her,  as  his  right,  if  any,  as  tenant  by  cur- 
tesy, depends  upon  him  surviving  her  and  upon  her  being 
seized  of  the  property  at  his  death.  His  interest,  as 
tenant  by  curtesy,  is  in  no  way  similar  to  right  of  dower, 
as  the  sale  of  the  premises,  during  the  life-time  of  the 
wife,  whether  it  be  by  partition  or  by  her  voluntarily,  or 
sold  in  payment  of  her  debts,  divests  the  land  of  any 
claim  or  interest  that  the  husband  might  have  against  it 
by  reason  of  being  a  tenant  by  the  curtesy.  "  The 
widow's  right  of  dower  should  be  assigned  to  her,  and  a 
division  made  of  the  residue  of  the  moneys.  "  The 
widow's  dower  cannot  be  assigned  to  one  of  the  heirs  in 
exclusion  of  the  rest  ;  and  a  decree  to  that  effect  of  forty 
years'  standing  was  held  to  be  void,  and  the  land  yet  sub- 
ject to  partition." 

In  all  cases  of  sales  under  judgment  or  decree  of  parti- 

19  Verry  z/.  Robinson,  25  Ind.  19;  Francisco  v.  Gates,  28  111. 
67  ;  Tanner  2'.  Niles,  i  Barb.  562. 

20  Gordon  -v.  Sterling,  1 3  How.  Pr.  405  ;  i  Barb.  560 ;  44  Id.  372. 

21  Freem.  on  Co-ten.  477  ;  Pillsbury  v.  Dugan,  9  Ohio,  120;  34 
Am.  Dec.  427  ;  8  Ohio,  106. 

22  Curtis  V.  Snead,  12  Gratt.  264. 

23  Sumner  v.  Paricer,  7  Mass.  79. 


DOWER.  287 

tion,  when  it  shall  appear  that  any  married  woman  has  an 
inchoate  right  in  the  lands  divided  or  sold,  or  that  any 
person  has  any  contingent  or  vested  estate  in  such  lands, 
it  is  the  duty  of  the  court,  under  whose  judgment  or  decree 
the  sale  of  the  land  is  made,  to  ascertain  and  settle  the 
value  of  such  inchoate,  contingent  or  vested  right  or 
estate,  according  to  the  principles  applying  to  annuities 
and  survivorships,  and  to  direct  such  proportion  of  the 
proceeds  of  the  sale  to  be  invested,  secured  or  paid  over, 
in  such  a  manner  as  will  be  decreed  best  and  proper  to 
secure  and  protect  the  rights  and  interests  of  such 
parties,  having  such  inchoate  right  of  dower,  vested  or 
contingent  future  estate  in  the  lands  sought  to  be  sold 
or  partitioned.  ='  The  inchoate  rights  of  dower  oi femes 
covej-ty  v/hether  infants  or  adults,  in  the  undivided  shares 
of  their  husbands  in  the  land,  the  wives  being  parties  to 
the  proceedings,  will  be  divested  by  a  sale  under  the 
judgment  or  decree  of  the  court,  so  as  to  protect  the  pur- 
chaser against  the  dower  of  such  femes  covert,  should 
they  survive  their  husbands. ''  When  the  land  of  the 
husband  is  sold  at  judicial  sale,  upon  a  judgment  against 
the  husband  only,  the  wife,  there  being  no  redemption 
from  the  sale,  becomes  vested  with  a  fee  in  one-third  of 
the  premises  formerly  owned  by  her  husband.  This  is 
according  to  the  statutes  of  Indiana  by  an  act  passed  in 
1875.  '^     In  Indiana,  where  the  wife  joins  her   husband  in 

24  N.  Y.  Laws  1840,  ch.  177  ;  Post  v.  Post,  65  Barb.  192,  ante. 

25  Jackson  v.  Edwards,  7  Paige,  386,  ante.  See  53  N.  Y.  298, 
wherein  reference  is  made,  in  the  case  of  Jackson  v.  Edwards, 
the  rule  to  compute  the  present  worth  of  an  inchoate  or  contin- 
gent right  is  discussed.    See  11  How.  176. 

2C  Medsker  2/.  Parker,  70  Ind.  509.  See  79  Id.  568;  80  Id. 
285;  83  Id.  4;  88  Id.  227;  89  Id.  440;  92  Id.  180.  Where 
the  debt  is  for  the  purchase-money,  see  loi  Mass.  426;  5  Cai.  455. 


288  THE    LAW    OF    PARTITION. 

executing  a  mortgage,  the  waiver  is  only  in  favor  of  the 
mortgagee,  and  other  creditors  cannot  avail  themselves  of 
it.-'  It  is,  undoubtedly,  a  general  rule  at  law  that  the 
waiver  of  the  wife,  who  joins  her  husband  in  executing  a 
mortgage  upon  the  lands,  only  extends  to  the  person 
receiving  such  mortgage,  or  to  his  heirs,  or  assigns,  and 
other  creditors  could  take  advantage  of  it  only  so  far 
as  the  interest  of  her  husband  and  the  wife  was  covered 
by  the  mortgage  in  which  she  joined  ;  but  that,  as  to  that 
interest,  the  waiver  of  the  wife,  during  the  existence  of 
the  mortgage,  is  for  the  benefit,  not  only  of  the  mortga- 
gee, but  of  the  person  who  purchased  the  premises  upon 
a  judicial  sale  by  virtue  of  the  foreclosure  of  such  mort- 
gage ;  and  to  that  class  of  persons  it  extends  to  all, 
whether  the  mortgage  covers  a  dower  interest  that 
has  been  waived  or  rests  upon  the  estate  held  by  the 
husband  in  severalty,  or  in  his  share  or  portion  of  a  ten- 
ancy in  common.  By  the  common  law,  the  wife  was  not 
entitled  to  dower  out  of  an  estate  in  remainder,  expec- 
tant on  the  estate  freehold  ;  but  this  strict  rule  is  not 
applicable  under  the  statutes  now  in  force.  In  Indiana, 
in  abolishing  dower,  and  substituting  an  estate  in  fee 
simple,  the  policy  of  the  legislature  in  that  State  was  to 
make  a  more  liberal  provision  for  the  wife.  °'  The  title 
of  the  co-tenants  cannot  be  severed  by  proceedings  in 
partition,  except  upon  equitable  terms.  All  of  the  equi- 
ties, which  in  law  are  presented  in  such  cases,  and  which 
arise  under  an  agreement,  must  be  adjusted  among  those 
equities  as  anything  which  may  create  a  lien,  or  an  estate 

27  Perry  v.  Borton,  25     Ind.    274;    McArthur  v.   Martin,  23 
Minn.  74 ;  Hunsucker  v.  Smith,  49  Ind.  1 14. 

28  Foltz  z/.  Wert,  I   Western   R.  852;    5  R.I.    104;    i   Washb. 
Real  Prop.  195. 


DOWER.  289 

in  the  whole,  or  any  party  of  the  premises.  The  rights 
of  one  co-tenant  cannot  be  impaired  by  liens  acquired 
against  that  part  of  the  premises  of  another  co-tenant.  " 
This  rule  being  general,  the  dower  interest  of  any  widow 
in  the  premises,  or  the  inchoate  right  of  dower  of  any 
wife  of  a  co-tenant,  must  be  equitably  adjusted  in  the 
partition  proceedings.  An  agreement  in  writing,  between 
a  widow  and  all  the  legatees  and  devisees  interested  in 
the  estate,  that  the  widow  should  decline  to  take  under 
the  will,  and  should  release  all  claim  to  dower,  thirds,  etc., 
and  that  the  executors  should  pay  to  her,  in  consideration 
thereof,  a  specified  sum  ;  the  executors  having  made  pay- 
ment to  her  accordingly  ;  such  payment  was  binding 
upon  the  legatees  and  devisees,  and  the  widow  had  a 
right  to  thus  release  her  dower,  and  the  amount  paid  by 
the  executors  should  be  allowed  him  upon  the  final  settle- 
ment before  the  probate  or  orphans'  court.  '"  In  this, 
case,  the  widow  does  not  take  at  law.  She  simply 
releases  all  her  claims,  both  at  law  and  under  the  will, 
for  a  special  sum  of  money  payable  out  of  no  person's 
particular  share,  but  out  of  the  general  residue.  "  Such 
settlement  upon  the  part  of  the  widow  is  binding  upon; 
the  co-tenants  of  the  common  property,,  and  their  heirs, 
and  assigns. 

There  is  no  way  in  which  the  value  of  the  widow's, 
share  can  be  first  set  off  to  her  without  making  her  a 
party  to  the  petition.  It  is  in  the  discretion  of  the  court, 
on  her  application,  to  allow  her  to  obtain  a  partition,  and 
for  the  court  to  determine  whether   a   case   is  shown  for 

2944  I nd.  156;  86  Id.  591  ;   3  Pom.  Eq.  §  1239;    98  Pa.   St.  489 ; 
3  Head,  56;  72  Ind.  562 ;   loi   Id.  514. 
3^  Stewart's  App.,  i  C.  R.  577. 

31  Sandoe's  App.,  15  P.  F.  S.  314;  Gallagher's  App.,  6  Norr.  200. 
19 


290  THE    LAW    OF    PARTITION. 

the  sale  of  the  land.  The  petitioner  is,  therefore,  entitled 
to  maintain  the  petition  against  the  widow,  as  well  as 
against  the  other  respondents.'-  The  life  estate  is  in  the 
nature  of  an  estate  in  dower  unassigned,  which,  while  not 
a  bar  to  partition  among  reversioners,  is  not  subject  to  par- 
tition with  them.''  A  petitioner  holding  an  undivided  half 
of  the  premises,  could  maintain  an  action  against  the 
widow  for  partition.'*  Where  the  incumbrance  upon  the 
land  consists  of  a  right  of  dower,  the  release  of  which 
cannot  be  procured,  the  purchaser  is  entitled  to  a  convey- 
ance, if  he  elects  to  receive  it,  and  to  a  deduction  from 
the  purchase  money  of  the  value  of  the  right  of  dower  at 
the  time  of  the  conveyance.''^  The  court  can  decree  that 
the  widow  release  her  right  of  dower  when  she  has  pre- 
viously entered  into  a  contract  with  the  executors  or 
co-tenants  to  sell  the  premises  in  question.'^  A  widow 
who  purchases  land  of  which  her  intestate  husband  dies 
seized,  at  a  commissioner's  sale,  under  proceedings  in- 
stituted "for  partition,  takes  the  land  by  purchase  and 
not  by  descent  ;  and  a  voluntary  conveyance  by  such 
widow  to  a  second  husband  vests  the  title  to  the  land, 
upon  his  death  intestate,  in  his  heirs,  and  not  in  those  of 
the  first  husband.'' 

Where  one  has  an  existing  right  of  dower  in  the  entire 
property  which  is  to  be  sold  by  virtue  of  the  decree  of 
the  court,  the  court  must  consider  and  determine  whether 
the  interests  of  all  the  parties  require  that  the  right  of 

32  Allen  V.  Libbey,  i  N.  Eng.  73. 

33  Motley  V.  Blake,  12  Mass.  280;  Ward  v.  Gardner,  112 
Id.  42. 

34  Taylor  v.  Blake,  109  Mass.  513;  121  Id.  267  ;  9  Allen,  260. 

35  Davis  V.  Parker,  14  Allen,  94.     See  4  Allen,  259. 
\       36  Bostwick  V.  Beach,  5  Cent.  R.  388. 

37  Spencer  v.  McGonagle,  8  Northeastern  R.  266. 


DOWER. 


291 


dower  should  be  excepted  from  the  sale,  or  that  it  should 
be  sold  therewith.*  In  a  partition  suit,  where  the  pres- 
ent value  of  a  contingent  or  inchoate  right  of  dower  of  a 
married  woman  is  ascertained  under  a  decree,  pursuant  to 
the  New  York  statute  of  April  28,  1840,  such  value 
represents  the  present  worth  of  the  woman's  right  of 
dower  in  the  premises,  and  the  sum  paid  or  reserved  in 
respect  to  the  same,  is  her  absolute  property.  A  sale 
under  a  decree  in  partition,  operating  as  a  statutory  con- 
version, the  sum  payable  to  a  married  woman  for  the 
value  of  her  contingent  dower,  is  personal  property, 
which  belongs  to  her  husband,  subject  to  her  claim  for  a 
settlement,  and,  on  her  death  without  asserting  such 
claim,  it  will  be  paid  over  to  him.''  Formerly,  in  actions 
for  partition,  the  ordinary  practice,  when  a  release  could 
not  be  obtained  from  the  wife,  was,  to  pay  the  money,  set 
apart  for  her  dower,  into  court.  But  by  the  New  York 
acts  of  1848  and  1849  such  persons  were,  in  effect,  de- 
clared, in  respect  of  property  and  its  management,  to 
stand  precisely  upon  the  same  footing  as  single  females, 
and  with  the  same  power  of  disposal  as  if  they  were 
unmarried.  Therefore,  money  awarded  to  the  wife  on 
partition,  need  not  be  paid  into  court.  It  would  seem  to 
be  the  duty  of  the  courts  to  reverse  the  former  common- 
law  presumption,  and  to  assume  that  every  married 
woman  is  competent  to  manage  and  control  as  any  man 

*  Where  a  party  has  an  existing  right  of  dower  in  the  entire 
property  directed  to  be  sold,  at  the  time  when  an  interlocutory 
judgment  for  a  sale  is  rendered  in  an  action  for  partition,  the 
court  must  consider  and  determine  whether  the  interests  of  all 
the  parties  require  that  the  right  of  dower  should  be  excepted 
from  the  sale,  or  that  it  should  be  sold.  N.  Y.  Code  Civ.  Pro. 
§  1567. 

38  Bartlett  v.  Janeway,  4  Sand.  Ch.  423. 


292  THE    LAW    OF    PARTITION. 

or  single  female.'^  The  right  of  dower  should  be  consid- 
ered at  the  time  of  the  rendering  of  the  interlocutory 
judgment/" 

The  right  of  dower  passes,  if  the  sale  of  the  property, 
including  the  right  of  dower,  is  directed ;  and  the  pur- 
chaser shall  hold  the  property  free  and  discharged  from 
any  claim,  by  reason  of  such  right  of  dower.  The  dowress, 
in  such  case,  is  entitled  to  receive,  from  the  proceeds  of 
the  sale  of  the  whole  property,  a  gross  sum,  in  satisfaction 
and  in  lieu  of  her  right  of  dower,  or  else  to  have  one- 
third  of  the  proceeds  of  such  sale  paid  into  court,  for  the 
purpose  of  having  the  same  invested  for  her  benefit.'' 
A  judgment  in  partition,  and  a  sale  thereunder,  bars 
the  inchoate  right  of  dower  of  the  wife  of  any  owner,  if 
she  be  made  a  party  to  the  action.  The  omission  to  pro- 
vide in  the  judgment  for  ascertaining  the  value  of  the 
inchoate  right  of  dower  of  the  one  entitled  thereto,  is 
erroneous,  yet  it  can  only  be  corrected  on  appeal  ;  the 
omission  does  not  avoid  the  judgment,  and  the  purchaser 
at  a  sale  thereunder  acquires  a  good  and  sufficient  title 
of  the  premises,  free  from  all  claim  of  dower/'  The  action 
in  partition  is  an   equity  suit,  and  it   has   been  held  that, 

39  Benedict  t/.  Seymour,  11  How.  Pr.  176. 

40  15  N.  Y.  624;  9  Cow.  530  ;  5  Abb.  Pr.  53. 

'' If  a  sale  of  the  property,  including  the  right  of  dower,  is 
directed,  the  interest  of  the  party  entitled  to  the  right  of  dower 
shall  pass  thereby  ;  and  the  purchaser,  his  heirs  and  assigns,  shall 
hold  the  property  free  and  discharged  from  any  claim  by  virtue  of 
that  right.  In  that  case  the  dowress  is  entitled  to  receive,  from 
the  proceeds  of  the  sale  of  the  whole  property,  a  gross  sum,  in 
satisfaction  of  her  right  of  dower,  or  to  have  one-third  of  those 
proceeds  paid  into  court,  for  the  purpose  of  being  invested 
for  her  benefit,  as  prescribed  in  the  next  section,  with  respect 
to  the  dowress  of  an  undivided  share.  N  Code  Civ.  Pro. 
§  1568. 

*i  Jordan  v.  Van  Epps,  19  Hun,  526,  ante. 


DOWER.  293 

inasmuch  as  the  action  in  partition  is  an  equity  suit,  con- 
flicting claims  in  regard  to  dower  cannot  be  settled  in 
such  an  action. 

Courts  of  chancery  have  concurrent  jurisdiction  with 
courts  of  law  for  the  recovery  or  assignment  of  dower. 
If  the  right  of  the  widow  to  dower  is  undisputed  by  the 
pleadings,  the  court  will  at  once  proceed  to  assign  to  her 
such  right  of  dower,  and  to  take  an  account  of  the  arrears, 
if  it  i^  a  case  in  which  she  could  recover  damages  at  law. 
But  if  her  right  is  disputed  in  a  court  of  chancery,  the 
court  will  retain  the  bill  before  it,  and  direct  a  suit  at  law 
to  ascertain  the  title  to  the  dowry.^^  In  this  case  just 
cited,  the  bill  was  filed  to  recover  dower,  and  contained 
a  prayer  for  an  assignment  of  the  same  and  general 
relief.  The  defendants  demurred  to  the  bill  for  want  of 
equity,  alleging  in  the  demurrer  that  the  complainant 
had  a  full  and  complete  remedy  at  law,  and  the  court 
held  as  above  stated,  and  the  action  at  issue  was  as 
to  the  title  of  the  dowry.  In  our  present  form  of 
action,  being  an  action  possessory  in  its  nature,  and 
affecting  the  title  to  the  premises,  the  court  would  un- 
doubtedly allow  disputed  questions  pertaining  to  dower 
to  be  settled  in  one  and  the  same  action,  the  object  being 
to  avoid  a  multiplicity  of  litigation.  And  courts  of  law 
having  concurrent  jurisdiction  to  decide  questions  of 
equity,  such  as  were  brought  before  the  Court  of  Chan- 
cery in  its  day,  and  courts  of  law  assuming  to  decide 
questions  of  law  or  questions  of  fact  arising  in  equity 
under  our  present  forms  of  practice,  and  the  Court  of 
Appeals,  in  passing  upon  the  case  of  Jordan  against  Van 
Epps,"  passed  upon   the   question   of  dower,  and  Justice 

*2  Badgley  v.  Bruce,  4  Paige,  98. 

*3  85  N.  Y.  427. 


294  THE    LAW    OF    PARTITION. 

Miller,  in  his  opinion,  states  :  "  That  the  decree  first 
entered  made  an  improper  provision  for  the  plaintiffs 
dower  interest,  and  that,  upon  its  being  opened  and  a  new 
decree  made,  the  referee  found  that  Christopher  Jordan, 
before  the  commencement  of  the  partition  suit,  procured 
an  absolute  divorce  from  the  plaintiff,  and  that  the  second 
decree  made  no  provision  whatever  as  to  the  plaintiff's 
right  of  dower,  were  matters  to  be  considered  in  that 
case,  as  the  plaintiff  could  have  answered,  appealed  from 
the  judgment,  or  moved  to  set  it  aside;  and  if  erroneous, 
had  her  rights  protected.  She  could  have  then  set  up 
her  adverse  possession  or  claim,  insisting  that  her  rights 
should  be  determined  at  law,  and  not  in  equity  ;  and, 
having  failed  to  do  this,  or  to  make  any  defense,  has  no 
right  to  claim,  in  another  action,  that  she  was  unlawfully 
deprived  of  her  dower  right.  .... 

While  these  cases  sustain  the  general  principle  that  a 
prior  incumbrancer,  or  one  who  claims  adversely,  is  not 
a  proper  party  to  a  foreclosure  suit,  or  in  actions  of  kin- 
dred character,  involving  a  question  as  to  priority  of  liens 
or  a  claim  to  dower,  adverse  to  the  interest  of  the  plaintiff, 
none  of  them  hold,  where  the  claim  is  stated  in  the  com- 
plaint, as  was  the  fact  in  the  partition  case,  that  it  may 
not  be  the  subject  of  adjudication,  and  the  judgment 
thereon  conclusive  where  no  objection  is  taken  that  it  is 
not  a  proper  subject  of  consideration."  Justice  Miller  in 
his  opinion  reviews  a  number  of  cases  that  have  been 
passed  upon  by  the  courts,  w^here  somewhat  different 
views  were  held.°  By  the  common-law  rule,  dower  may 
be  admeasured,  notwithstanding  a  partition  suit  has  been 

c  85  N.  Y.  428  ;  distinguished,  4  Paige,  98  ;  3  Id.  342  ;  2  Barb. 
Ch.  398  ;  5  Barb.  51  ;  46  N.  Y.  182;  5  Denio,  385.  See  4  Kent,  7 
ed.  Ti,  381. 


D0WER.3  295 

brought  and  the  widow  made  a  party.  **  The  inchoate 
right  of  dower  will  be  protected.  •"  Where  the  husband 
and  wife  joined  in  a  conveyance  of  land  of  the  former,  the 
sale  being  induced  by  fraud  on  the  part  of  the  grantee, 
the  wife  has  a  cause  of  action  against  him  for  damages 
sustained  in  the  loss  of  her  inchoate  right  of  dower.  The 
inchoate  right  of  dower  of  the  wife  is  as  much  entitled  to 
protection  as  the  vested  right  of  a  widow." 

The  right  of  dower  is  similar  in  its  position  to  that  of  a 
prior  incumbrance  on  the  foreclosure  of  a  subsequent 
mortgage,  in  the  fact,  that  the  right  of  dower  cannot 
be  affected  so  as  to  compel  the  owner  thereof  to  be  a 
loser  by  reason  of  the  action.  Some  cases  go  so  far  as  to 
hold  that  a  sale  of  the  property  would  in  no  way  affect 
the  right  of  dower.  A  sale  of  the  property  would,  per- 
haps, affect  the  right  of  dower,  if  that  sale  were  under  a 
decree  of  partition,  and  the  question  of  dower  had  been 
•  before  the  court  and  settled  by  the  court  in  its  dfecree  ; 
but  it  could  not  prejudice  the  right  of  dower,  as  that 
must  necessarily  be  protected,  and,  in  case  of  a  sale  under 
the  decree  of  the  court,  where  the  question  of  right  of 
dower  has  been  settled,  the  dower  would  cease  to  be  a 
lien  upon  the  land,  and  would  remain  a  lien  upon  the 
moneys  derived  as  a  result  from  such  sale  ;  and  the  pur- 
chaser would  receive  his  title  to  the  premises  free  and 
clear  from  any  right  of  dower,  and  yet  the  right  of  dower 
would  be  unprejudiced  and  be  protected."    The  purchaser 

^  44  Barb.  370;  Youngs  v.  Carter,  10  Hun,  194. 

*^  Simarz^.  Canaday,  53  N.  Y.  298. 

^^  Matthews  v.  Duryee,  4  Keyes,  525  ;  Mills  v.  Van  Voorhies, 
20  N.  Y.  412. 

47  Eagle  Fire  Ins.  Co.  z/.  Lent,  6  Paige,  635  ;  HolcombT/.  Hol- 
comb,  2  Barb.  20  ;  Corning  v.  Smith,  6  N.  Y.  82.  See  9  N.  Y.  502  ; 
30  Id.  428;  49  Id.  Ill  ;  75  Id.  127  ;  4  Hun,  359  ;  72  N.  Y.  218;  7 
111.  269;  79  N.  Y.  634;  84  Penn.  St.  537  ;  31  Ind.  376. 


296  THE    LAW   OF    PARTITION. 

on  a  partition  sale,  under  the  order  of  the  court,  is  enti- 
tled to  be  protected  even  against  an  error/' 

The  party  having  the  right  of  dower,  or  a  tenant  for 
life,  or  for  years,  in  an  undivided  share  of  the  property  in 
question,  is  entitled  to  receive,  from  the  proceeds  of  the 
sale  of  the  property,  a  gross  sum,  to  be  fixed  in  accord- 
ance with  the  rules  and  principles  applicable  to  annuities, 
such  sum,  when  received,  is  in  satisfaction  of  such  person's 
estate  or  interest  in  the  property.  The  written  consent 
of  the  party  receiving  such  sum  must  be  had,  the  same 
must  be  acknowledged  or  proved,  and  certified  to,  in  like 
manner  as  a  deed  or  mortgage  to  be  recorded.  This 
written  consent  must  be  filed,  at  the  time  of,  or  before, 
the  filing  of  the  report  of  sale  ;  otherwise,  the  court 
whose  duty  it  is  to  protect  the  right  of  dower,  life  estate 
or  estate  for  years,  and  especially  the  right  of  dower, 
must  direct  that,  out  of  the  proceeds  of  the  sale,  which 
belonged  to  the  undivided  share  to  which  the  estate  or 
interest  attaches,  one-third,  in  case  of  a  dowress,  and,  in 
any  other  case  arising  under  section  1569  of  the  New 
Code  of  Civil  Procedure,  the  entire  proceeds,  or  such  a 
proportion  thereof  as  fairly  represents  the  interest  of  the 
holder  of  the  particular  estate,  must  be  paid  into  court, 
for  the  purpose  of  being  invested  for  the  benefit  of  the 
person  so  owning  such  dower  interest  or  estate.  ^ 

48  Holden  7/,  Sackett,  12  Abb.  Pr.  473;  Wadhams  v.  Gray,  73 
111.  422  ;  Harris  7/.  Jay,  55  N.  Y.  421  ;  Dorsey  v.  Thompson,  37  Md. 
26.  See  6  N.  Y.  Week.  Dig.  313;  Woods  z>.  Lee,  21  La.  Ann.  505  ; 
McCahill  v.  Eq.  Co.,  26  N.  J.  Eq.  531  ;  Yaple  v.  Titus,  v.  Titus,  41 
Penn.  St.  195  ;  3  Barb.  Ch.  241  ;  5  Sandf.  135;    i  Greenl.  Ev.  189. 

d  A  party  to  an  action  for  partition,  who  has  a  right  of  dower 
or  is  a  tenant  for  life,  or  for  years,  in  or  of  an  undivided  share  of 
the  property  sold,  is  entitled  to  receive,  from  the  proceeds  of  the 
sale,  a  gross  sum,  to  be  fixed  according  to  the  principles  of  law 
applicable  to  annuities,  in  satisfaction  of  his  or  her  estate  or  in- 


DOWER. 


297 


111  an  action,  by  a  widow  to  recover  her  dower,  in 
which  infant  defendants  interpose  the  usual  answer,  sub- 
mitting their  rights  to  the  court,  proof  of  service  of  the 
papers,  and  of  the  failure  of  the  adult  defendants  to 
answer,  is  insufficient  to  sustain  a  judgment  ;  and  a  pur- 
chaser at  a  sale  under  such  judgment  is  not  bound  to 
complete  his  purchase.  It  is  only  in  an  action  for  the  re- 
covery of  money  only,  that  judgment  upon  a  verified  com- 
plaint may  be  ordered  without  proof  of  its  allegations.*' 

Where  one  of  the  parties  is  a  widow  and  entitled 
to  dower  in  a  part  of  the  premises,  and  also  to  the  use 
and  occupation  of  snch  part  until  her  youngest  child  be- 
comes of  age,  the  value  of  such  interest  in  money  can  be 
ascertained  and  paid  to  her,  if  she  consents  to  release 
her  dower  and  accept  a  sum  in  gross,  and  her  interests 
can  thus  be  extinguished.  '"  Although  a  trustee  takes 
an  estate  in  real  property  only  commensurate  with  the 
purposes  of  the  trust,  while  the  trust  continues,  it  seems 
that  he  has  a  greater  estate  than  that  of  a  tenant  for  life. 
If  the  decree  in  an  action  for  the'  partition  and  sale  of 
real  property  recognizes  and  protects  remainders  there- 

terest.  The  written  consent  of  the  party  to  receive  such  a  gross 
sum  acknowledged  or  proved,  and  certified,  in  like  manner  as  a 
deed  to  be  recorded,  must  be  filed,  at  the  time  of,  or  before,  the 
filing  of  the  report  of  sale ;  otherwise,  the  court  must  direct  that, 
out  of  the  proceeds  of  the  sale,  which  belonged  to  the  undivided 
share  to  which  the  estate  or  interest  attaches,  one-third,  in  case 
of  a  dowress,  and  in  any  other  case  arising  under  this  section,  the 
entire  proceeds,  or  such  a  proportion  thereof  as  fairly  represents 
the  interest  of  the  holder  of  the  particular  estate,  be  paid  into 
court,  for  the  purpose  of  being  invested  for  his  or  her  benefit. 
N.  Y.  Code  Civ.  Pro.  §  1569. 

*'•'  Dwyer  v.  Dwyer,  13  Abb.  Pr.  N.  S.  269.  See  Rule  76  N.  Y. 
Pr.  and  N.  Y.  Code  Civ.  Pro.  §  1579;  Benedict  v.  Seymour,  11 
How.  176,  ante. 

M  Bond  V.  McNiff,  38  N.  Y.  Super.  Ct.  83. 


298  THE    LAW    OF    PARTITION. 

in,  the  interests  of  the  remaindermen  are  cut  off,  even  if 
the  court  erred  in  the  practice  as  to  the  manner  of  pro- 
tecting such  remainders.  Such  errors  would  only  be  an 
irregularity  and  would  not  affect  the  validity  of  the 
decree.  "  If  the  widow  claiming  the  right  of  dower,  or 
the  wife  having  the  inchoate  right  of  dower,  be  an  infant, 
a  guardian  must  be  appointed  for  her  for  the  purpose  of 
the  action,  and  such  guardian  must  give  a  bond  required 
by  the  rules  and  practice  of  the  court.  ® 

The  court  may  fix  the  value  of  the  inchoate  right  of 
dower,  or  any  other  future  right  or  estate,  vested  or  con- 
tingent, in  any  of  the  property.  ^  Whether  the  inchoate 
right  of  dower  of  the  wife  of  a  tenant  in  common  of  lands 
ordered  to  be  sold  in  partition  suit,  is  affected  under  the 
provisions  of  our  statute  by  a  sale  in  pursuance  of  such  or- 
der, so  as  to  bar  recovery  in  an  action  of  dower  upon  death 
of  her  husband,  was  at  one  time  an  undecided  question, 
and  has  lately  been   much  discussed  in  our  courts.  " 

A  married  woman   may  release    to    her    husband    her 

51  Rockwell  V.  Decker,  5  Civ.  Pro.  R.  62  ;  distinguishing  80 
N.  Y.  320;  citing  17  N.  Y.  491  ;  65  Barb.  583.  See  21  Alb.  L.  J. 
435;  70  N.  Y.  138,  517. 

e  As  to  the  validity  of  objection  to  the  guardian's  bond,  see 
18  N.  Y.  Week.  Dig.  314;  5  Civ.  Pro.  R.  43. 

f  Where  it  appears,  that  a  party  to  the  action  has  an  inchoate 
right  of  dower,  or  any  other  future  right  or  estate,  vested  or  con- 
tingent, in  any  other  property  sold,  the  court  must  fix  the  pro- 
portional value  of  the  right  or  estate,  according  to  the  principles 
of  law  applicable  to  annuities  and  survivorships,  and  must  direct 
that  proportion  of  the  proceeds  of  the  sale  to  be  invested,  secured 
or  paid  over,  in  such  a  manner  as  it  deems  best  calculated  to  pro- 
tect the  rights  and  interests  of  the  parties.  N.  Y.  Code  Civ.  Pro. 
§  1570. 

s-  Jackson  v.  Edwards,  22  Wend  498,  a7tte  ;  7  Paige,  386  ;  55  N. 
Y.  15  ;  3  Edw.  431  ;  63  N.  Y.  272  ;  5  Abb.  Pr.  loi  ;  HofTm.  468  ;  2  N. 
Y.  251  ;  53  Id.  304 ;  13  Am.  R.  526 ;  1 1  Hun,  410 ;  i  Sandf.  549  ;  ?8 
Mich.  23  ;  10  Barb.  556. 


DOWER.  299 

inchoate  right  of  dower,  in  the  property  directed  to  be 
sold  by  the  decree  in  partition.  Such  release  must  be  in 
writing,  duly  acknowledged  by  her  and  subject  to  the 
same  rules  in  regard  to  such  acknowledgment  as  a  deed 
or  other  writing  for  record  ;  and  such  written  release  of 
her  inchoate  right  of  dower  must  be  filed  with  the  clerk 
Thereupon,  the  share,  or  the  amount  received  upon  the 
sale,  and  being  derived  from  her  contingent  interest  in  the 
lands,  must  be  paid  to  her  husband.^ 

The  widow  is  entitled  to  dower  in  the  equitable 
estates  of  her  husband."  She  has  a  right  of  dower  in  the 
equity  of  redemption  subject  to  a  mortgage,  although  she 
may  have  joined  in  the  mortgage."  The  court  will  pro- 
tect the  right  of  the  widow  in  her  right  of  dower  in  and  to 
the  equity  of  redemp<^ion.''  To  entitle  a  widow  to  dower 
she  must  show  that  her  husband  had  during  the  coverture 
an  actual  corporeal  seizin  of  the  premises  of  which  dower 
is  demanded,  or  that  her  husband  had  a  right  to  such 
seizin,  and  that  her  husband's  possession  was  evidence  of 
that  right  unless  the  tenant  show  a  paramount  title  in 
himself^''  Her  right  to  dower  in  an  equity  of  redemption, 
is  against  all  persons  except  the  mortgagee  and  persons 
claiming  under    him.''     Every   devise    which    a    husband 

«  A  married  woman  may  release  to  her  husband  her  inchoate 
right  of  dower,  in  the  property  directed  to  be  sold,  by  a  written 
instrument,  duly  acknowledged  by  her  and  certified,  as  required  by 
law  with  respect  to  the  acknowledgment  or  a  conveyance  to  bar 
her  dower  ;  which  must  be  filed  with  the  clerk.  Thereupon,  the 
share  of  the  proceeds  of  the  sale,  arising  from  her  contingent  inter- 
est, must  be  paid  to  her  husband.      N.  Y.  Code  Civ.  Pro.  ^  1571. 

•'■':*  Lewis 7A  James, 8  Humph. 537;  Manning!/.  Laboree,33  Me. 343. 

S4  Simotan  v.  Gray,  34  Me.  50. 

^5  Hinchman  v.  Stiles,  i  Stockt.  361,  454. 

56  Mann  v.  Edson,  39  Me.  25. 

57  Hastings  v.  Stevens,  9  Foster,  564. 


300  THE    LAW    OF    PARTITION. 

I 

makes  of  land  upon  which  his  wife's  right  of  dower 
attaches,  is  presumed  to  be  made  subject  to  that  right  of 
dower,  unless  the  contrary  appears  on  the  face  of  the 
devise,  in  express  words,  or  by  the  strongest  kind  of  impli- 
ca-tion."  It  is  only  when  the  husband  dies  seized  of  land, 
that  the  widow  is  entitled  to  one-third  of  the  rencs, 
issues  and  profits  thereof,  prior  to  the  assignment  of 
dower/^  The  widow  is  not  dowable  of  an  imperfect 
equity/"  She  is  entitled  to  dower  in  a  right  in  equity  of 
redemption  of  lands  mortgaged,  against  all  persons, 
except  mortgagees  and  those  claiming  under  them  ; 
against  whom  she  cannot  be  endowed  except  by  full  pay- 
ment of  the  mortgage."  Where  tenants  in  common  make 
a  division  of  the  land,  in  equal  proportions,  by  mutual 
releases,  the  right  of  dower  which  may  accrue  to  the 
widow  of  either  of  them  is  limited  to  the  part  which  was 
released  to  her  husband.  There  is  no  such  limitation  to 
her  right,  though,  if  for  a  valuable  consideration,  the 
division  was  purposely  made  in  unequal  proportions."  The 
widow  is  not  entitled  to  dower  in  lands,  conveyed  away 
by  her  husband  before  marriage,  although  such  convey- 
ance was  fraudulent,  and  for  the  purpose  of  defeating  his 
creditors." 

Where  three  persons  are  seized  of  land  as  tenants  in 
common,  and  make  a  partition  of  land  between  them,  by 
parol  ;  and  one  dies  seized,  leaving  a  widow,  five  or  six 
years  after  such  partition,  the   lapse   of  time  and  posses- 

58  Cunningham  v.  Shannon,  4  Rich.  Eq.  135. 

59  Bolster  v.  Cushman,  34  Me.  428. 

60  Edmonson  v.  Montague,  14  Ala.  370.  See  15  Ala.  810;  i 
Carter,  134  ;  i  Mann.  i. 

61  Rossiter  r^.  Cossit,  15  N,  H.  38. 

62  Mosher  v.  Mosher,  32  Me.  412. 

C3  Whithed  v.  Mallory,  4  Cash.  138. 


DOWER.  301 

sion  of  land  in  severalty,  in  addition  to  such  five  or  six 
years,  sufficient,  therewith,  to  bind  the  owners,  is  not 
enough  to  bar  the  rights  of  such  widow  ;  but  she  has 
dower  in  all  the  parcels,  or  one-ninth  of  the  whole  land." 
The  wife  of  a  tenant  in  common  is  not  dowable  of  land, 
not  assigned,  upon  partition  by  the  court,  to  her  husband; 
whether  she  has  been  a  party  to  the  proceeding  or  not." 
The  widow  is  entitled  to  dower,  although  she  may  have 
lived  away  from  her  husband  many  years  in  adultery,  if 
she  has  not  been  divorced."*  A  woman  married  and  dom- 
iciled away  from  her  husband,  is  entitled  to  dower  in  per- 
sonal and  real  estate  situated  in  Mississippi."  An  alien 
widow  is  not  entitled  to  dower,  in  New  York."'  To 
entitle  a  widow  to  dower,  her  husband  must  have  had  an 
actual  corporeal  seizin,  or  an  absolute  right  to  such 
seizin.  A  legal  seizin  of  a  vested  remainder  is  not  suffi- 
cient."^ She  must  establish  the  seizin  of  her  husband, 
either  actual  or  constructive,  at  some  period  during  the 
converture,  before  her  dower  can  be  allotted  to  her.'" 
Dower  is  a  legal  right.  The  principles  are  the  same 
whether  it  be  claimed  by  suit  at  law  or  in  equity.'^ 

64  Lioyd  7'.  Conover,  i  Dutch.  47. 

*5  Lee  2/.  Lindell,22  Miss,  (i  Jones)  202. 

6G  Reynolds  7/.  Reynolds,  24  Wend.  193;  citing  Co.  Litt.  32;  2 
Blacks.  Comm.  130  ;  4  Kent  Comm.  52  ;  i  Greenl,  294  ;  6  Bing.  135  ;  9 
Henry  III.  ch.  7  ;  17  Wend.  128  ;  8  Id.  661  ;  6  Paige,  332 ;  2.  See  3 
Hill.  99  ;  64  N;  Y.  49  ;  II  Hun,  224;  4  Barb.  201  ;  24  How.  Pr.  93 ; 
3  Abb.  Pr.  165;  III  U.  S.  525. 

6'^  Duncan  v.  Dick,  Walker,  281. 

C8  Connolly  v.  Smith,  21  Wend.  59;  citing  10  Id.  379;  i 
Cow.    89;    16    Id.    615.     See   3    Den.  231  ;    51  Wis.  256  ;    20  Wend. 

338. 

•5^  Blood  V.  Blood,  23  Pick.  80;  Bullard  v.  Bowers,  10  N.  II. 
500. 

70  Ware  v.  Washington,  6  Smedes  &  M.  737. 

71  Mayburry  z/.  Brien,  15  Pet.  21. 


302  THE    LAW    OF    PARTITION. 

Where  the  husband  had  previous  to  his  death  simply 
a  reversion  in  fee  or  a  vested  remainder,  expectant  upon 
an  estate  for  Hfe,  his  widow  cannot  be  endowed.  This 
rule  applies  equally  as  well  where  the  estate  comes  to  the 
husband  by  inheritance  as  by  purchase."  A  purchase 
money  mortgage  cannot  affect  the  widow's  right  to  dower 
in  the  equity  of  redemption  under  the  Revised  Statutes  of 
New  York  ;  "  and  the  wife  is  entitled  to  a  dower  in  the 
surplus  moneys  on  a  foreclosure  sale,  whether  the  mort- 
gage cover  the  whole  of  the  premises  or  only  that  portion 
owned  by  her  husband  as  a  tenant  in  common."'  The 
dower  always  extends  to  lands  of  which  her  husband  dies 
seized  as  tenant  in  common  with  others, '^  and  in  his 
partnership  lands  ;  '"  but  it  does  not  extend  to  an  estate 
for  the  life  of  another,"  nor  in  a  vested  remainder  in  fee 
belonging  to  her  husband  limited  on  the  precedent  life 
estate.''^  At  common  law  the  widow  was  not  dowable  in 
her  husband's  equity  of  redemption."'''  At  common  law 
the  right  of  dower  could  not  be  waived  or  released  by  an 
agreement  in  lieu  of  dower  made  previous  to  marriage."" 

■^2  Durando  ik  Durando,  23  N.  Y.  331  ;  32  Barb.  259. 

73  Mills  7A  Van  Voorhies,  20  N.  Y.  412  ;  10  Abb.  Pr.  452.  See 
23  Barb.  435  ;  i  Edw.  279. 

74  De  Lisle  v.  Herbs,  25  Hun,  485.  See  48  Barb.  570  ;  Gibson 
V.  Crehore,  3  Pick.  475  ;  Eaton  v,  Simpson,  14  Pick.  98  ;  Fish  v. 
Fish,  I  Conn.  559. 

75  Smith  V.  Smith,  5  Alb.  L.  J.  124. 
70  Smith  V.  Jackson,  2  Edw.  28. 

77  Gillis  V.  Brown,  5  Cow.  388. 

78  Green  v.  Putnam,  i  Barb.  500  ;  23  Pick.  80  ;  7  Mass.  253  ;  5 
N.  H.  240. 

79  Stelle  V.  Carroll,  12  Pet.  201.  See  3  Mas.  459  ;  6  McLean, 
422. 

""  When  the  widow  is  entitled  to  dower  in  lands  of  which  the 
ancestor's  widow  was  endowed.  See  Aikman  71.  Harsell,  63  How. 
Pr.  no  ;  Leavitt  v.  Humphrey,  13  Pick.  382. 

8*^  Gould  V.  Womack,  2  Ala.  83. 


DOWER.  ^p,-> 


The  wife's  dower  attaches  as  soon  as  there  is  a  concur- 
rence of  marriage  and  seizin." 

The  widow  is  entitled,  in  equity,  to  an  account  for 
rents  and  profits,  until  her  dower  is  assigned,  or  to  inter- 
est, if  a  sum  of  money  is  assessed  in  h'eu  of  dower.  The 
contrary  rule  is  founded  upon  the  inadequacy  of  the  pro- 
ceeding at  law  for  the  recovery  of  damages,  and  not  on 
the  want  of  title  to  the  mesne  profits.  The  right  to 
recovery  accrues  upon  the  death  of  the  husband.^=  Equity 
will  interpose  against  the  wife's  claim  of  dower,  only  in 
the  following  cases  :  first,  where  the  implication  that  she 
shall  not  have  both  the  devise  and  the  dower  is  strong 
and  necessary;  second,  where  the  devise  is  entirely 
inconsistent  with  the  claim  of  dower  ;  third,  where  it 
would  prevent  the  whole  will  from  taking  effect  ;  that  is, 
where  the  claim  of  dower  would  overturn  the  whole  in  Mo/' 

In  proceedings  in  partition  a  recognizance  or  mort- 
ga.?e  given  for  the  widow's  dower  is  but  collateral  ;  the 
lien  is  independent  of  such  security,  being  created  by  law 
Itself."  A  written  contract  of  marriage  entered  into 
between  two  parties,  in  the  presence  of  witnesses,  consti- 
tutes a  valid  marriage,  and  confers  upon  the  wife  the  right 
to  dower  ;  the  fact  that  the  previous  relations  of  the 
parties  were  unlawful  is  immaterial."' 

The  possession  of  the  widow  is  the  possession  of  the 
heir.     She  holds  of  him  in  contemplation  of  law.'" 

*"  Scott  7A  Howard,  3  Barb.  319. 

82  Richard  v.  Talbird,  i  Rice  Eq.  158. 

8'i  Kennedy  z/.  Nedrow.  2  Dall.  418 ;  Hamilton  v.  Buckwalter, 
2  Yeates.  389;  McCullough  z/.  Allen,  3  Id.  10;  Creacraft  z/.  Wions. 
Addison,  351. 

84  In  re  Null,  2  F.  R.  71. 

85  Mathevvson  v.  Phoenix  Iron  Foundry,  20  F,  R.  281. 
8G  Berrien  v.  Conover.  i  Harrison,  109. 


304  THE    LAW    OF    PARTITION. 

This  is  laid  down  in  the  opinion  of  Justice  Ryerson  in 
the  case  just  cited.  In  discussing  the  rights  of  widows, 
and  the  rights  of  heirs,  as  being  that  law  which,  when 
properly  construed,  is  equity  to  the  dowress,  and  equity 
to  her  children,  heirs  of  her  husband,  and  tenants  in  com- 
mon of  the  estate,  of  which  she  is  in  possession,  the 
widow  has  a  right  by  the  statute  to  hold  and  enjoy  the 
mansion-house  of  her  husband,  and  the  messuage  or  plan- 
tation thereto  belonging,  until  dower  be  assigned.  And 
the  estate  thus  given  to  her  is  not  a  common-law  quaran- 
tine for  forty  days,  but  a  freehold  for  her  life,  unless  the 
same  should  be  sooner  defeated  by  an  act  of  the  heirs."' 
Dower  is  not  in  the  nature  of  a  life  estate  in  all  things, 
and  is  not  affected  the  same  way  by  partition."' 

To  the  consummation  of  dower,  three  things  are  neces- 
sary :  marriage,  seizin,  and  death  of  the  husband;  yet  it  is 
an  interest  which  attaches  to  the  lands  as  soon  as  there 
is  a  concurrence  of  marriage  and  seizin.*^  Inchoate  dower 
is  an  estate  and  possesses  the  element  of  property.  This 
property  the  wife  can  protect  in  a  court  of  equity.^"  It  is 
a  common-law  and  not  a  statutory  right.^^  Inchoate 
dower  differs  from  dower  absolute,  in  that  the  former  is 
a  right  to  become  fixed  in  future,  while  the  latter  is  a 
right  to  become  fixed  in  the  present.  Both  are  liens  and 
charges  upon  the  land,  inalienable  save  by  the  wife  or 
widow.^'^   The  rights  of  dower  will  be  protected  in  judicial 

87  Ackerman  z*.  Shelp,  3  Halst.  125. 

88  Motley  V.  Blake,  12  Mass.  280;  Ward  v.  Gardner,  112  Mass. 
42,  ante. 

89  Slsk  7J.  Smith,  6  111.  507  ;  Ketchum  v.  Shaw,  28  Ohio  St.  506. 

90  Buzick  V.  Buzick,  44  Iowa,  259.  See  55  Iowa,  256;  27  Id.  197. 

91  6  111.  512,  aftie. 

92  Farewell  v.  Johnston,  34  Mich.  342;  41  Id.  702 ;  51  Id.  309. 


DOWER.  305 

proceedings."  The  wife  can  maintain  an  action  to  remove 
a  cloud  from  her  inchoate  right  of  dower.^^  Where  the 
inchoate  right  of  dower  is  affected  by  the  decree,  the  wife 
is  a  necessary  party  to  the  action.'^  The  wife  has  a  right 
of  action,  where  she  has  been  defrauded  of  her  dower,  and 
where  there  has  been  fraud  and  her  right  of  dower  is 
involved.  Dower,  inchoate  and  present,  can  only  be 
released  by  the  voluntary  act  of  the  wife  or  widow."^  The 
inchoate  right  of  dower  is  such  an  interest  as  will  be  pro- 
tected in  partition."  * 

The  wife's  right  of  dower,  although  not  admeasured, 
is  an  absolute  right,  which  is  assignable.^'  Before  assign- 
ment of  dower,  the  widow  has  no  estate  in  the  lands  of 
her  husband  ;  her  right  is  a  mere  chose  in  action  ;  her 
receipt  of  one-third  of  the  rent  of  the  real  estate,  in  lieu 
of  dower,  for  several  years  after  the  death  of  her  husband, 
does  not  constitute  an  assignment  of  dower,  and  is  not  a 
bar  to  an  action  therefor.  To  constitute  an  assignment, 
the  agreement  or  contract  of  the  widow  must  be  her  spe- 
cific act,  and  such  agreement  or  act  should  clearly  mani- 
fest thats  uch  was  her  intention.*' 

^^  Conover  v.  Porter,  14  Ohio  St.  450. 

94  Madigan  v.  Walsh,  22  Wis.  501  ;  Weston  v.  Weston,  46 
Wis.  1 34.     ' 

'J^  Damm  v.  Moon,  48  Mich.  510. 

86  Yazel  V.  Palmer,  81  111.  82.  See  39  111.  75  :  23  Id.  641  ;  29 
Id.  442  ;  21  Ga.  161  ;  15  Ohio  St.  493 ;  27  N.  J.  Eq.  534. 

87  Lee  V.  Lindell,  22  Mo.  202  ;  Weaver  v.  Gregg,  6  Oliio  St. 
547.  See  32  Ohio  St.  210;  15  Id.  510;  28  Wis.  266;  53  Cal.  658;  7 
Week.  Notes,  197. 

'•*«  Popez/.  Mead,  99  N.  Y.  202.  See  8  N.  Y.  no;  i  Barb.  500; 
2  N.  Y.  245;  5  Barb.  438  ;  26  Johns.  412;  87  N.  Y.  153;  15  Johns. 
477;  3  I^^rb.  643;  45  Id.  317. 

'■»«  Aikman  v.  Harsell,  98  N.  Y.  186.  See  2  Hill,  547  ;  "  l^arb. 
579;  67N.Y.404;  73  111.  405;  20  Johns.  411;  2  Scribncr  on 
Dower,  30. 

20 


J 


06  THE    LAW    OF    PARTITION. 


The  wife  shall  be  endowed  where  the  husband  had 
seizin  in  law,  as  well  as  where  he  had  an  actual  seizin. 
And,  therefore,  if,  after  descent  of  land,  the  husband  dies 
before  entry,  his  wife  shall  be  endowed.  She  shall  also 
be  endowed,  though  the  seizin  did  not  continue  till  the 
death  of  the  husband  ;  as,  if  a  man  seized  in  fee  takes  a 
wife,  and  then  sells  his  lands  to  another  and  his  heirs, 
she  shall  be  endowed,  though  the  estate  of  her  husband 
be  evicted  by  an  older  title,  after  the  end  of  the  eviction.  "" 
The  right  of  dower  is  inchoate  and  contingent  until  the 
death  of  the  husband,  and  before  that  event  is,  as  respects 
the  wife,  under  the  absolute  control  of  the  legislature  ; 
and  it  is  competent  for  the  legislature  to  enact  that 
deeds  theretofore  executed,  under  a  joint  power  of  attor- 
ney from  husband  and  wife,  shall  be  valid  and  binding.  "^ 
Where  property  is  sold  at  a  chancery  sale,  and  the  pur- 
chaser, believing  that  he  had  a  good  and  sufficient  title, 
placed  valuable  improvements  upon  the  property,  such 
as  manufacturing  buildings,  and  it  appeared,  on  a  bill  be- 
ing filed,  that  the  estate  was  subject  to  dower,  the  court 
held  that  inasmuch  as  it  would  inequitable  for  the  com- 
plainant to  be  benefited  by  the  improvements  at  the 
expense  of  the  purchaser,  or  for  her  to  be  admitted  to  a 
partnership  in  the  manufactory,  or  in  the  improvements, 
it  would  be  proper,  and  the  court  had  power  to  decree 
an  annual  payment  to  the  complainant  in  lien  of  dower, 
equivalent  to  the  annual  value  of  her  interest  in  the 
estate.  "^     A  voluntary  partition  by  deed   made  by   the 


100  Co.  Liu.  31.  32. 

101  Randall  v.  Krieger,  2  Dill.  445  ;  7  West.  J.  625. 

102  Lewis  7/.  James,  8  Humph.  537. 


DOWER. 


307 


husbands,  without  their  wives,  being   equal,  and  followed 

by  possession  in  severalty,    will  restrict  the   dower  rights 
in  equity  to  the  several  parcels.  '"^ 

103  Totten  v.  Stuyvesant,  3  Edw.  Ch.  500, 


CHAPTER   XX. 


UNKNOWN   OWNERS. 


The  statutes  of  nearly  all  the  States  in  the  Union 
have  been  so  designed  that  they  furnish  all  the  means 
necessary  to  make  partition  binding  and  valid  against  all 
persons  who  may  be  made  parties  to  the  action  ;  but  the 
law  had  to  meet  a  difficulty  in  the  fact  that  ofttimes  some 
of  the  tenants  in  common  or  joint  tenants  of  the  land 
are  unknown,  they  living  at  such  a  distance  from  the 
premises,  and  under  such  circumstances,  that  it  becomes 
an  impossibility  to  ascertain  their  names  in  order  to  bring 
about  a  valid  judgment  for  partition  as  against  all  per- 
sons, known  and  unknown  owners.  The  law  in  most 
States  has  been  so  made  that  unknown  owners  may  be 
brought  in  and  become  subject  to  the  jurisdiction  of  the 
court,  after  which  a  judgment  can  be  rendered  binding 
and  valid  as  against  such  unknown  owners.  In  such 
cases,  it  is  the  duty  of  the  court  to  take  care  of  the  inter- 
est and  preserve  and  protect  the  rights  of  such  persons. 
The  New  York  statutes  provide  :  "  If  the  persons  entitled 
to  any  such  estate  in  dower,  by  the  curtesy  or  for  life,  be 
unknown,  the  court  shall  take  order  for  the  protection  of 
the  rights  of  such  persons,  in  the  same  manner,  as  far  as 
may  be,  as  if  they  were  known  and  had  appeared."  ^ 

1  3  R.  S.  6  ed.  592,  §  64. 
[308] 


UNKNOWN    OWNERS.  3O9 

Every  person  who  is  entitled  to  an  estate  in  the  prop- 
erty sold,  and  who  shall  be  made  a  party  to  the  action 
as  an  unknown  owner  or  unknown  defendant,  the  court 
will  provide  for  their  protection  and  the  protection  of  his 
or  her  interests,  so  far  as  the  same  may  be  known  and 
appears  to  the  court.  "■  A  judgment  in  partition  under 
the  statute,  where  part  of  the  premises  belongs  to 
owners  unknown,  is  not  valid,  unless  it  appear  upon 
the  face  of  the  record  that  the  affidavit  required  by  the 
statute,  that  the  petitioner  or  plaintiff  in  partition  is  ignor- 
ant of  the  names,  rights  or  titles  of  such  owners,  and  that 
the  affidavit  was  duly  presented  to  the  court,  and  that 
the  notice  also  required  in  such  cases  was  duly  published.  * 
If  such  an  affidavit  should  be  admitted,  the  record  of  the 
partition  suit  to  be  produced  on  the  trial  would  be  insuf- 
ficient and  would  not  give  the  court  jurisdiction  in  the 
action.  The  statutes  require,  where  the  action  is  such, 
that  proceedings  are  required  against  unknown  owners,, 
that  the  petitioner  shall  not  only  state  in  his  petition  that 
the  parties  and  the  extent  of  their  interest  in  the  land,, 
are  unknown  to  him,  but  it  shall  also  be  accompanied  by 
an  affidavit  stating  that  the  petitioner  is  ignorant  of 
the  names,  rights  and  titles  of  such  persons.  If  such 
averments  were  omitted  in  the  affidavit,  the  court  would 
not  have  jurisdiction  of  the  unknown  owners.  The  court 
must  have  jurisdiction  not  only  of  the  subject-matter,  but 
of  the  persons  or  parties  to  the  action. ' 

•^  If  a  person,  entitled  to  an  estate  or  interest  in  the  property 
sold,  is  made  a  party  as  an  unknown  defendant,  the  court  must 
provide  for  the  protection  of  his  rights,  as  far  as  may  be,  as  if  he 
was  known  and  had  appeared.  N.  Y.  Code  Civ.  Pro.  g  1572.  See 
L.  1 8 14,  249  ;  I   R.  L.  513. 

2  Denning  7/.  Corwin,  11  Wend.  647  ;  citing  15  Johns.  141; 
19  Id.  33. 

3  5  Johns.  41  ;  8  Id.  90 ;  15  Id.  121  ;  19  Id.  33 ;  C  Wend.  447. 


3IO  THE   LAW    OF    PARTITION. 

To  make  the  title  perfect,  all  persons  who  are  in  any 
way  interested  in  the  premises,  or  who  have  any  rights 
therein,  known  or  unknown,  must  be  make  parties  to  the 
action  ;  and  the  record  must  show  that  service  was  had 
upon  such  persons  in  pursuance  to  the  rules  of  court, 
either  a  personal  service,  a  service  by  publication,  or  per- 
sonally, without  the  State,  or  substituted  service  ;  and  it 
should  appear  that  the  defendant  is  in  custody  of  the 
court,  or  duly  served  with  process  pursuant  to  its  rules.  ■* 
The  record  of  the  judgment  must  show  that  the  law  and 
the  rules  of  the  court  have  been  fully  complied  with,  and 
that  the  court  had  jurisdiction  of  that  with  which  it  dealt. 
If  the  record  show  upon  its  face  that  the  court  acted  with- 
out jurisdiction,  the  proceedings  before  it  are  void,  and 
the  whole  of  its  proceedings  in  the  case  are  a  nullity.  ^ 

The  statute  of  Mississippi  provides  that  where  a 
defendant  cannot  be  found,  a  writ  o{  capias  ad  i-espon- 
dendiim  shall  be  served,  by  leaving  a  copy  with  the  wife 
of  the  defendant,  or  some  proper  person  above  the  age  of 
sixteen  years,  found  at  his  usual  place  of  abode.  *  This 
mode  of  service  may  be  used  in  that  State  in  partition 
cases,  where  the  defendant  upon  whom  it  is  served  is 
absent  from  his  last  place  of  residence,  and  conceals  or 
secretes  himself,  so  that  his  sojourn,  or  place  of  conceal- 
ment, cannot  be  found  ;  and,  if  his  interest  in  the  lands 
sought  to  be  partitioned  be  unknown,  or  his  rights  can- 
not be  ascertained  at  the  time  of  the  commencement  of 
the  action,  such  service  would  legally  bring  him  within 
the  jurisdiction  of  the  court,  and  the  judgment  rendered 

I         4  Jackson  v.  Brown,  3  Johns.  459  ;  13  Id.  489  ;  8  Cow.  370. 
I         5  Borden  v.  Fitch,  15  Johns.  141  ;  Mills  v.  Martin,  19  Id.  33. 

6  Harris  v.  Hardeman,  55  U.  S,  (14  How.)  334.     See  3  Miss.  35  ; 
I  Smedes&  M.  515,595. 


UNKNOWN    OWNERS.  3  I  I 

by  the  court  would   be  binding   upon   him  and   his   heirs 
forever. 

Where  proceedings  against  unknown  owners  are  con- 
ducted in  accordance  with  the  laws  and  the  rules  of  the 
court   in  which  the  action  is  brought,  the  co-tenants  not 
named  in  the  proceedings  are  as  much  bound  by  the  judg- 
ment as  those   who  are   named    and   who   were   brought 
before  the  court  by  their  proper  names.     Where  a  final 
judgment  in  partition,  obtained  in  proceedings   against 
unknown    owners,  comes    in  question    collaterally,    such 
owners  are  as  fully  concluded  by  it  from  questioning  the 
fact  of  the  complainant's  seizin,  as  if  they  had  been  made 
parties    to  the  proceedings   by  name.     The  proceedings 
previous  to  such  judgment  will  be  presumed  regular,  until 
the  contrary  appear.'     When  such  a  judgment  or  decree 
is    collaterally   called    into  question,  one  must  naturally 
expect  to  find  that  some  courts  will  refuse  to  give  it  effect 
unless  all  the  facts  authorizing  all  the  proceedings  against 
such  unknown  owners  are  shown  to  have  existed  ;    and 
the  courts  will  require,  in  the  absence  of  such  facts,  that 
there  be  affirmatively  established  such  absence,  and  will 
incline  to  consider  mere  defects  in  the  partition  proceed- 
ings as  involving  nothing  serious,  and  nothing  beyond  the 
erroneous  exercise  of  an  established  jurisdiction,  assumed 
by  the  court  before  whom  the  proceeding  was  had.' 

If  the  petitioner  or  plaintiff  does  not  know  who  the 
co-tenants,  or  all  of  the  co-tenants  are,  he  may  allege 
sufficiently  as  to  his  own  ownership  in  the   property  fully 

7  Coles  T^.  Hall,  2  Hill,  625;  citing  i  Hill,  23,  141.  489.  49^ :  n 
Wend.  647  ;  distinguished  in  37  Barb.  355  ;  cited  in  96  N.  Y.  531  ; 
Rogers  v.  Tucker,  7  Ohio  St.  428  ;  Foster  v.  Abbott,  8  Met.  598. 
See  10  Wis.  320. 

«  Waltz  V.  Barroway,  25  Ind.  38 1.     See  2  Mill,  627. 


312  THE     LAW    OF    PARTITION. 

explaining  his  own  position  as  a  co-tenant,  and  further 
adding  the  fact  that  he  is  such  co-tenant  together  with 
others  to  him  unknown,  who  have  an  interest  in  such 
premises.  In  such  cases,  notice  is  to  be  given  to  all  per- 
sons interested  in  the  premises,  by  personal  service  where 
known  and  where  personal  service  can  be  had,  or  by- 
publication  or  substituted  service  where  unknown,  or 
where  personal  service  cannot  be  had.  If  the  partition 
be  regularly  made,  and  the  judgment  decreed  pursuant 
to  the  petition,  and  all  things  have  been  done  by  the 
petitioner,  which  are  required  by  the  practice,  such  judg- 
ment is  valid  to  all  intents  and  purposes,  and  binding 
upon  all  parties  known  and  unknown  whose  interests 
were  before  the  court.' 

9  Baylies  v.  Bussey,  5  Greenl.  157  ;  Foxcroft  v.  Barnes,  29  Mc. 
129  ;  Kane  v.  Rock  River  Canal  Co.,  15  Wis.  186;  Nash  v.  Church, 
10  Wis.  311  ;  Herr  v.  Herr,  5  Penn.  St.  428  ;  47  Am.  Dec.  416. 


CHAPTER  XXI. 


SALE. 


If  a  sale  of  the  premises  is  desired,  then  the  complaint 
should  contain  a  dertiand  that  the  lands  be  sold.  It  is 
proper  that  the  prayer  for  relief  should  first  demand  that 
a  partition  of  the  premises  be  had,  providing  such  parti- 
tion could  be  made  without  injury  to  the  rights  and 
interests  of  those  who  are  owners  of  the  premises  ;  and, 
if  the  partition  and  division  of  the  premises  among  the 
respective  co-tenants  would  be  injurious  to  the  interests 
of  such  co-tenants,  then  a  sale  should  be  had,  and  that 
sale  should  be  so  conducted,  and  all  the  previous  proceed- 
ings in  the  case  should  have  been  so  conducted  that  the 
purchaser  at  such  sale  will  receive  a  proper  and  sufficient 
title  of  the  premises  purchased  by  him.  The  courts  of 
Tennessee  have  held  that  a  sale  of  the  property  cannot 
be  ordered,  unless  the  complaint  contains  in  its  allega- 
tions those  facts  required  by  the  statute  to  be  proven  to 
authorize  the  court  to  direct  a  sale.' 

This  rule  cannot  be  considered  general.  The  manner 
and  form  in  which  the  partition  or  sale  is  to  be  made,  in 
most  States,  constitutes  no  part  of  the  cause  of  action, 
but  it  is  a  part  of  the  relief  to  which  the  petitioner  or 
complainant  is  entitled  ;    and  that   relief  to  which  he  is 

1  Ross  z/.  Ramsey,  3  Head,  16.  ^ 

[313I 


314  THE    LAW    OF    PARTITION. 

entitled  depends  upon  the  facts  which  he  can  prove,  when 
it  becomes  necessary  for  him  to  present  his  cause  of 
action  to  the  courts.  If  a  sale  can  be  had,  and  it  is  the 
wish  of  all  who  are  concerned  in  the  action  that  a  sale 
should  be  had,  then  it  will  be  decreed  by  the  court.  If, 
on  the  other  hand,  the  parties  to  the  action  did  not  agree 
that  there  may  be  a  sale,  then  it  is  the  duty  of  the  court 
to  examine  into  the  case  in  all  its  particulars,  and,  if 
proper,  to  decree  that  the  premises  be  divided  and  allot- 
ted among  the  co-tenants  according  to  their  respective 
rights  and  interests  ;  but,  if  such  division  is  not  proper, 
then  to  decree  a  sale,  which  sale  is  governed  by  the  rules 
and  regulations  laid  down  by  the  court,  and  subject 
to  the  control  of  the  court,  and  must  be  within  the  stat- 
ute making  provision  for  such  actions.  The  complaint  is 
not  bad  because  it  may  allege  reasons  why  there  should 
be  a  sale,  but  its  silence  upon  those  questions  is  not 
injurious  to  it.°  Whether  a  partition  can  or  cannot  be 
made  is  purely  a  question  of  fact,  and  the  constituent 
facts  or  purposes  are  merely  probative,  and  need  not 
be  averred,  but  may  be  claimed.  The  alleged  facts 
claimed  upon  the  part  of  the  plaintiff  favoring  a  sale 
as  a  usual  thing  is  surplusage,  when  set  up  in  the  com- 
plaint. It  is  not  necessary  to  show  when  the  right  to 
partition  accrued,  as  in  general  the  statutes  of  limitation 
have  no  application.' 

The  interlocutory  judgment  must  make  directions  in 
regard  to  the  sale,  if  a  sale  is  to  be  had.  By  the  inter- 
locutory judgment,  the  court  may  decree  whether  there 
shall  be  terms  of  credit  given  upon  such  sale  ;  and,  if 
credit  be  given,  it  may  decree  how,  and  how  secured,  or 

2  De  Uprey  v.  De  Uprey,  27  Cal.  331. 

3  Jenkins  v.  Dalton,  27  Ind.  78. 


SALE.  3  I  r 

in  Other  words,  it  may  consider  the  amount  of  the  pur- 
chase money  for  which  credit  is  given  as  an  investment. 
By  the  interlocutory  judgment,  the  court  may  control  in 
all  its  particulars  that  investment.^  The  interest  of  every 
person  in  the  premises  shall  pass  by  a  sale,  providing  such 
sale  shall  have  been  ordered  and  decreed  by  the  court, 
and  the  person  purchasing  the  property  upon  the  sale,  his 
heirs  and  assigns  thereafter  hold  such  premises  as  his 
own,  free  and  discharged  from  all  claims  by  virtue  of  any 
estate  or  interest  that  may  have  been  thereon,  and  thus 
holds  it  whether  the  same  be  to  any  undivided  share  of  a 
joint  tenant,  or  a  tenant  in  common,  or  to  the  whole  or 
any  part  of  the  premises  so  sold.*  The  court  may  decree 
a  sale,  which  will  give  the  purchaser  a  perfect  title  to  the 
premises  discharged  of  all  liens  and  incumbrances.  The 
New  York  statutes  have  altered  the  law,  to  some  extent, 
on  this  subject  by  authorizing  the  court  to  decree  a 
sale,  which  will  give  the  purchaser  such  perfect  title.* 
Purchasers  at  judicial  sale  have  a  right  to  receive,  at  the 
hands  of  the  court,  such  titles  as  are  free  from  all  reason- 
able objections;"  and  for  that  reason,  it  is  the  duty  of 
the  court  in  making  the  interlocutory  judgment  to  scan 
all  the  proceedings  in  the  case  with  the  utmost  care,  so 
that  upon  the  sale   the  purchaser    may  receive    that  to 

*  The  court  must,  in  the  interlocutory  judgment  for  a  sale, 
direct  the  terms  of  credit  which  may  be  allowed  for  any  portion 
of  the  purchase  money,  of  which  it  thinks  proper  to  direct  the 
investment,  and  for  any  portion  of  the  purchase  money,  which  is 
required  to  be  invested  for  the  benefit  of  a  person,  as  prescribed 
in  this  article.     N.  Y.  Code  Civ.  Pro.  g  1573. 

4  3  N.  Y.  R.  S.  6  ed.  592,  §  60;    N.  Y.  Laws  1814,  p.  249  ;    R.  S. 

513.  §  15- 

5  Harwood  v.  Kirby,  i  Paige,  469.  See  2  R.  S.  4  cd.  5S5  ;  Hop- 
kins, 501. 

6  Blakely  v.  Calder,  13  How.  Pr.  476,  ante. 


3l6  THE    LAW    OF    PARTITION, 

which  he  is  entitled,  and  should  not  grant  a  decree  of 
sale  among  the  heirs,  when  it  appears  that  the  personal 
property  is  insufificient  to  pay  the  debts  of  the  ancestor. 
Because,  it  is  not  the  business  of  a  court  of  equity  to 
undertake  the  administration  of  estates  in  the  first 
instance,  nor  to  take  the  administration  out  of  the  hands 
of  persons  who  have  been  duly  appointed  for  that  pur- 
pose, and  who  are  in  no  way  in  default.'  There  should 
be  no  unreasonable  delay  in  perfecting  the  sale,  so  as  to 
compel  the  purchaser  to  receive  the  title.' 

The  statutes  of  Kentucky  require  that  when  the  lands 
of  a  married  woman  are  to  be  sold,  who  is  an  infant,  a 
proper  bond  shall  be  given  to  her  subject  to  the  approval 
of  the  court,  which  bond  must  be  required  by  the  court 
securing  to  her  her  share  of  the  lands  about  to  be  sold.' 
In  America,  it  is  the  universal  rule  that  infancy  does  not 
suspend  or  prohibit  the  right  of  an  adult  co-tenant  to 
enforce  partition.'"  This  rule  is  applicable  to  a  sale  of 
the  property,  where  a  division  of  the  same  cannot  be  had 
among  the  co-tenants,  and  the  court  will  take  care  of 
and  protect  for  the  infant  such  parts  of  the  proceeds  as 
may  belong  to  him  by  reason  of  his  being  a  co-tenant  in 
the  land.  It  would  be  unreasonable  to  say,  that  the 
rights  of  the  adults  were  debarred  because  a  certain  por- 
tion of  the  co-owners  of  the  premises  were  infants,  and 
that  the  interests  of  those  infants  do  not  require  that  the 

7  Matthews  v.  Matthews,  i  Edw.  Ch.  564;  citing  3  Paige,  653  ; 
adhered  to,  7  Paige,  391  ;  overruled  in  Id.  41 1  ;  approved  in  23 
Hun,  119,  121  ;  commented  on  in  4  Edw.  47,  48. 

8  Jackson  v.  Edwards,  22  Wend.  498.  See  55  N.  Y.  15.  Effect 
of  sale  on  inchoate  right  of  dower  :  Hoffman,  468  ;  2  N.  Y.  251  ;  13 
Am.  R.  526;  II  Hun,  410;  28  Mich.  23;  52  Mo.  100. 

9  Horsfall  v.  Ford,  5  Bush,  644. 
1*^  Hooke  V.  Hooke,  6  Lou.  474. 


SALE.  317 

land  should  be  sold."  If  the  infant  is  regularly  brought 
into  court,  so  that  the  court  has  jurisdiction  of  him  so  far 
as  the  action  is  concerned,  the  sale  decreed  in  the  action 
is  as  effectual  against  the  infant  as  it  is  against  any  adult 
defendant  who  is  also  within  the  jurisdiction  of  the  court.'" 
The  sale  cannot  be  set  aside,  after  the  court  has  gained 
jurisdiction  and  made  its  decree  in  proper  form  and  man- 
ner, for  any  irregularities  or  errors  in  the  subsequent  pro- 
ceedings, providing  the  jurisdiction  of  the  court  over  the 
person  and  property  of  the  infant  was  properly  gained  in 
the  action.*'  If  there  has  been  collusion  or  fraud  upon 
the  part  of  the  adult  co-tenants  as  against  the  rights  and 
interests  of  the  infants,  so  as  to  give  the  infant  an  unequal 
portion  of  the  proceeds,  or  in  any  way  to  injure  the  infant 
in  his  interest,  or  in  any  way  to  debar  him  of  any  of  the 
rights,  or  to  jeopardize  and  imperil  his  interest  in  the 
property  by  any  collusion  or  treachery  upon  the  part  of 
such  adults,  the  court  would  necessarily  set  all  the  pro- 
ceedings aside  for  the  purpose  of  protecting  such  in^nt 
defendants,  as  it  is  its  duty  to  protect  all  persons  who 
may  be  within  its  jurisdiction,  who  may  have  resting  upon 
them  any  disability  which  does  not  allow  such  persons  to 
protect  themselves  in  the  action.'* 

When  the  court  directs  that  a  sale  of  the  premises  be 
had,  that  terms  of  credit  be  given  for  a  portion  of  the 
purchase  money,  such  credit  must  be   to  the  effect  that 

11  Albright  z-.  Flowers,  53  Miss.  246;    Coker  ?/.  Pitts.  37   Ala. 

693- 

12  Fiske  V.  Kellogg,  4  Oreg.  503;  Savage  v.  Williams,  15  La. 
Ann.  250.     See  63  111.  462  ;  41  Mo.  413. 

1^  Richards  tj.  Richard,  17  Ind.  636  ;  Hite  ?/.  Thompson,  18 
Mo.  461. 

'*  Long  V.  Mulford,  17  Ohio  St.  484;  Merrittt/.  Shaw,  15  Grant 
Ch.  323. 


3l8  THE    LAW    OF    PARTITION. 

the  portion  of  the  purchase  money,  so  upon  credit,  must 
be  secured  or  be  upon  interest,  and  the  security  must  be 
a  mortgage  upon  the  property  sold,  with  the  bond  of  the 
purchaser,  together  with  such  other  security,  if  any,  as 
the  court  may  deem  proper  and  just.''  The  responsibil- 
ity for  the  proper  and  safe  investment  of  the  funds  upon 
which  credit  is  given,  rests  with  the  court,  and  it  is  the 
duty  of  the  court  to  see  that  it  is  so  secured,  that,  if  not 
paid  in  accordance  with  the  terms  of  such  bond  and 
mortgage  so  given  by  the  purchaser,  a  collection  thereof 
can  be  enforced.  The  officer  making  the  sale  may  take 
separate  mortgages  and  other  securities  for  such  portions 
of  the  purchase  money  as  may  be  directed  by  the  court 
to  be  invested.  In  case  that  the  owners  of  the  shares,  or 
part  of  the  shares  to  be  invested,  are  of  full  age,  and  such 
owners  desire,  the  investment  of  such  mortgages  may  be 
taken  in  the  names  of  such  adult  owners  respectively, 
otherwise  to  run  to  the  county  treasurer  of  the  county  in 
which  the  property  is  situated." 

The  court  may  direct  that  the  share  of  an  infant  be 
paid  over  to  his  general  guardian,  but  it  is  better  and 
more  usual  that  the  court  direct  that  such  share  be  in- 
vested in   permanent   securities    for  the  benefit    of  such 

^  The  portion  of  the  purchase  money,  for  which  credit  is  so 
allowed,  must  always  be  secured  at  interest,  by  a  mortgage  upon 
the  property  sold,  with  a  bond  of  the  purchaser ;  and  by  such 
additional  security,  if  any,  as  the  court  prescribes.  N.  Y.  Code 
Civ.  Pro.  §  1574- 

The  officer  making  the  sale  may  take  separate  mortgages 
and  other  securities  in  the  name  of  the  county  treasurer  of  the 
county,  in  which  the  property  is  situated,  for  such  convenient 
portions  of  the  purchase  money,  as  are  directed  by  the  court  to 
invested  ;  and  in  the  name  of  the  owner,  for  the  share  of  any 
known  owner  of  full  age,  who  desires  to  have  it  invested.  N.  Y. 
Code  Civ.  Pro.  §  1575. 


SALE.  319 

infant.  ''  The  New  York  statutes  make  provision  for  the 
payment  of  the  infant's  share  to  the  general  guardian, 
and  not  to  the  guardian  ad  litem.  '"  The  decision  of  this 
last  case  cited  is  more  to  the  effect  that  the  interest  or 
the  share  of  the  infant  defendants  in  the  proceeds  of  the 
sale  ought  not  to  be  paid  to  the  guardian  ad  litem,  but 
should  be  brought  into  court,  and,  under,  and  by  the  direc- 
tion of  the  court,  invested  for  the  benefit  of  such  infants. 
That  decision  is  made,  not  under  the  law  allowing  credit 
to  be  given  for  any  part  of  the  purchase  money,  but  under 
the  statute  making  it  the  duty  of  the  court  to  protect  the 
infant  in  all  judicial  sales  of  property  wherein  he  may  be 
interested,  and  upon  the  assumption  that  the  sale  has 
been  made  for  cash  ;  that  the  purchaser  has  paid  for  the 
property  ;  that  the  share  of  the  infant  is  before  the  court 
for  its  further  order.  The  husband  is  not  entitled  to  that 
portion  of  the  proceeds  of  the  sale  on  partition  that  be- 
longed to  his  infant  wife.  His  interest  in  such  share  is 
no  different  than  that  of  any  disinterested  person,  and  he 
has  not  the  right  to  have  the  same,  or  to  use  the  same  for 
his  own  benefit,  or  in  his  own  business,  even  though  his 
infant  wife  should  consent.  The  same  must  be  by  the 
court  secured  by  proper  investment  for  her  benefit,  until 
she  shall  became  of  full  age.  " 

The  court  has  power  to  adjust  and  secure  the  rights 
of  the  parties  in  the  proceeds  of  the  sale,  whether  such 
rights  be  legal  or  equitable.  "  The  sale  of  the  premises 
is    usually  had   upon    the  report    of  the   referee,  who   is 

15  Robison  v.  McGregor,  16  Barb.  531. 
18  Carpenter  17.  Schermerhorn,  2  Barb.  Ch.  314. 
17  Sears  v.  Hyer,  i  Paige,  483. 

i«  Milligan  v.  Poole,  35  Ind.  64  ;  Gregory  v.  Gregory,  69  N.  C. 
522. 


320  THE    LAW    OF    PARTITION. 

appointed  by  the  court  to  take  evidence  of  the  facts  and 
circumstances  surrounding  the  premises  and  the  position 
of  the  parties  as  to  their  ownership,  and,  also,  to  take 
evidence  as  to  the  material  allegations  set  forth  in  the 
complaint.  The  statutes  provide  that  instead  of  appoint- 
ing commissioners  in  the  first  instance  to  make  partition, 
if  it  appear  by  the  report  of  a  referee  that  the  premises 
or  any  part  of  them  are  so  situated  that  a  partition  there- 
of cannot  be  had  without  great  prejudice  or  injury  to  the 
owners,  the  court  may  order  that  such  premises  be  sold 
at  public  vendue,  by  a  referee  or  some  proper  officer 
appointed  for  the  purpose  of  conducting  such  sales,  and 
that  there  shall  be  given  a  notice  of  the  time  and  place  of 
holding  the  sale,  in  the  same  manner  as  if  the  sale  should 
have  been  made  by  commissioners  appointed  for  that 
purpose,  and,  upon  the  report  of  the  referee  or  officer 
making  the  sale  being  confirmed  by  the  court,  the  court 
will  direct  him  to  execute  the  necessary  conveyances  to 
the  purchaser  or  purchasers  of  the  property.  Such  con- 
veyances will  have  the  same  effect,  as  if  executed  by  the 
commissioners.  "  Such  sale  may  be  made  by  the  sheriff 
instead  of  a  referee.  The  order  may  direct  that  the  sher- 
iff of  the  county  be  the  one  to  whom  it  be  referred  to 
make  such  sale.  The  order  directing  a  sale  shall  give 
specific  directions  as  to  the  disposal  of  the  surplus  pro- 
ceeds of  the  sale,  if  any  there  be. 

After  a  sale  shall  have  been  had,  the  officer  making 
it  must  immediately  file  with  the  clerk  his  report  of  such 
sale,  which  shall  be  under  oath,  and  shall  contain  a  de- 
scription of  each  parcel  of  land  sold,  and  the  name  of  the 
purchaser    or   purchasers    thereof,   and    the   amount   for 

19  Jennings  v.  Jennings,  2  Abb.  Pr.  6. 


SALE. 


321 


which  it  was  sold.  ^  The  order  for  the  sale  will  not  be 
made,  unless  the  court  is  satisfied  that  a  necessity  for 
such  order  exists.  It  is  necessary,  therefore,  that  the  acts 
and  circumstances  be  stated  upon  which  the  opinion  of 
the  commissioners  is  founded.  ^''  The  court  has  no 
authority,  in  a  partition  suit,  to  order  a  sale  of  the  prem- 
ises, unless  the  court  shall  be  satisfied  that  they  are  so 
situated  that  a  partition  cannot  be  made  without  great 
prejudice  to  the  owners.  Where  there  is  no  serious  diffi- 
culty in  effecting  an  actual  partition  of  the  premises,  to 
make  a  decree  of  sale  asked  for  by  the  plaintiff  would  be  an 
arbitrary  interference  with  the  rights  of  the  property.  It 
would  be  such  an  interference  that  would  compel  owners, 
under  color  of  partition,  to  sell  their  lands  against  their 
will,  and  turning  real  property  into  a  personal  estate  ;, 
and,  if  in  such  a  case  any  of  the  co-tenants  were  minors,, 
such  a  decree  would  be  to  the  great  hazard  of  the  minors, 
and  to  the  injury  of  those  who,  in  case  of  the  death  of 
such  minors,  would  be  their  heirs.  The  court  would  nefe,, 
in  making  such  an  order,  exercise  a  power  inconsistent 
with  the  spirit  of  the  Constitution,  and  inconsistent  with 
both  the  spirit  and  the  letter  of  the  statute,  and,  also^ 
inconsistent  with  private  rights  and  individual  privileges.. 
The  court  has  no  such  authority,  and  can  only  decree  a 
sale  when  the  facts  and  circumstances,  as  shown  before, 
show  that  the  plaintiff  is  entitled  to  a  sale  within  the 
statute.'"" 

<i  Immediately  after  completing  the  sale,  the  officer  making 
it  must  lile  with  the  clerk  his  report  thereof  under  oath,  contain- 
ing a  description  of  each  parcel  sold,  the  name  of  the  purchaser 
thereof,  and  the  price  at  which  it  was  sold.  N.  Y.  Code  Civ.  Pro. 
^1576. 

2^  Tucker  v.  Tucker,  19  Wend.  226,  at:/e. 

21  Fleet  z/.  Dorland,  11  How.  Pr.  489  ;  citing  19  Wend.  226;  2 
Barb.  Ch.  398  ;  19  Wend.  365.     Sec  46  Wis.  362  ;  45  Ind.  318. 

21 


32  2  THE    LAW    OF    PARTITION. 

The  rights  of  those  having  liens  upon  the  premises 
are  protected  upon  the  sale.  This  protection  is  by  the 
operation  of  the  law  ;  the  interest  or  lien  of  thelienholder, 
if  against  the  whole  premises  previous  to  the  sale, 
attaches  itself  to  the  whole  of  the  proceeds  thereafter. 
If  the  lien  is  only  against  the  share  or  portion  of  one  of 
the  co-tenants,  it  attaches  itself  to  the  share  or  portion 
of  the  proceeds  derived  from  the  sale,  and  belonging  to 
such  co-tenant ;  and  the  rights  and  interest  of  a  lienholder 
can  in  no  way  be  lost  by  reason  of  the  sale.  It  is  not  the 
business  of  the  court  to  decide,  or  even  to  discuss  con- 
flicting claims  and  rights,  or  the  equities  of  an  incum- 
brancer, so  as  to  direct  a  sale  ;  but  it  is  the  duty  of  the 
court  to  decide  such  questions  as  may  arise  in  regard  to 
the  liens  or  conflicting  claims  between  the  lienholders 
after  the  sale  in  regard  to  their  rights  to  any  part  of  the 
moneys,  which  are  the  proceeds  of  such  sale.^^  When  a 
lien  becomes  attached  to  one  of  the  co-tenant's  interest 
pending  the  action,  the  purchaser  takes  the  premises 
discharged  of  any  such  lien,  and  the  lien  attaches  itself, 
and  becomes  a  charge  upon  the  proceeds  of  such  sale 
belonging  to  the  co-tenant  against  whose  share  the  lien 
was."  One  purchasing  the  shares  of  some  of  the  tenants 
in  common  of  land,  pending  a  suit  in  equity,  ofttimes 
becomes  seized  of  such  shares,  and,  if  he  dies,  and  the 
decree  direct  the  land  to  be  sold,  his  widow  will  be 
entitled  to  her  dower  in  the  proceeds  arising  from  such 
shares.  On  such  a  purchase,  and  a  subsequent  sale  under 
the  decree  in  the  suit,  the  inchoate    right  of  dower   of 

22  Owslay  7^.  Smith,  14  Mo.  155;    Thurston  v.  Minke,  32  Md. 
574- 

23  Arnold  v.  Butterfield,  92  Ind.  403.     See   8  Ohio  St.  649;  24 
111.  310. 


SALE. 


O^O 


the  purchaser's  wife,  and  all  liens  affecting'  his  share, 
become  a  claim  upon  the  proceeds  of  the  sale."  A 
stranger  not  having  notice  of  the  pendency  of  such  an 
action,  would  be  protected  in  his  rights."^  The  lien  or 
right  of  such  persons  is  transferred  from  the  land  itself 
to  the  moneys  derived  by  the  sale  of  the  land.  Questions 
arising  in  regard  thereto  must  be  contested  upon  an 
application  for  the  moneys,  as  the  sale  is  usually  under- 
stood to  be  free  from  incumbrances  ;  and  the  reference 
will  be  to  take  proof  as  to  the  extent  and  validity  of  the 
liens.-*  If  a  sale  has  been  ordered  to  be  made  upon 
credit,  a  person,  who  holds  a  lien  upon  the  premises,  can- 
not compel  the  sale  to  be  made  for  cash,  in  order  that 
his  claim  may  thereby  be  paid.^' 

The  power  of  the  court  has  been  enlarged,  both  in 
England  and  America,  so  that  it  can  permit  a  sale  of  the 
premises  upon  an  action  brought  for  the  purpose  of  parti- 
tion, or  what  is  commonly  known  as  an  action  in  parti- 
tion. Under  the  old  law,  the  courts  had  no  right  to 
decree  a  sale,  but  must  decree  that  there  be  an  actual 
partition  of  the  land.  This  ofttimes  was  injurious  to  the 
co-owners,  and  even  made  a  partition  suit  a  matter  of 
speculation  upon  the  part  of  some  one  of  the  co-owners, 
who  believed  that  he  could  derive  an  unjust  advantage 
and  unrighteous  gain  by  compelling  the  lands  owned  in 
common,  to  be  parceled  out  among  the  co-owners 
thereof.-*     America  was   the    first  to  make  the  advance 

24  Church  V.  Church,  3  Sandf.  Ch.  475  ;  citing  9  Paige,  200. 

25  Westervelt  v.  Ilaff,  2  Sandf.  Ch.  107. 

26  Henry  v.  Auld,  8  Va.  L.  J.  54  ;  Sleen  v.  Clayton,  32  N.  J. 
Eq.  121.     See  55  N.  Y.  442  ;  Harp.  Eq.  256. 

27  Stern  v.  Epstin,  14  Richards  Eq.  7. 

28  Deloney  v.  Walker,  9  Porter,  497  ;  Harkins  v.  Pope,  10  Ala. 
499  ;  Turner  -v.  Morgan,  8  Ves.  143. 


324  THE     LAW    OF     PARTITION. 

Step  in  the  law  settling  forever  the  rights  of  the  courts 
to  decree  a  sale,  instead  of  compelling  an  actual  partition. 
It  is  true  that  the  matter  was  brought  to  the  attention  of 
the  English  courts,  but  it  was  left  for  the  American 
courts  to  bring  about  a  final  settlement  of  the  question, 
so  as  to  establish  that  a  court  of  equity  had  a  right  to  do 
equity  by  decreeing  a  sale  of  the  premises,  when  it  could 
not  do  equity  by  compelling  a  partition  and  division.  A 
sale  will  not  be  ordered  without  a  good  and  sufficient 
cause  shown.  The  applicants  for  the  sale  must  state  the 
existence  of  sufficient  facts  and  circumstances  to  show  to 
the  court  that  a  sale  of  the  premises  should  be  had.  The 
preponderance  of  the  proof  is  upon  him  who  seeks  the 
sale."'  The  sale  is  proper  when  it  is  for  the  interest  oi 
fhe  co-tenants  that  one  should  be  had  f  and  can  be 
granted  when  it  is  a  matter  of  great  convenience,  and 
the  partition  cannot  be  made  without  great  inconven- 
ience." It  should  be  ordered  when  it  is  for  the  best 
interest  of  all  the  parties  concerned." 

If  the  parties  are  not  entitled  to  partition  of  the 
premises,  providing  they  were  so  circumstanced  that  a 
partition  and  division  could  be  had,  then  they  are  not 
entitled  to  a  sale  of  the  same,  and  the  court  would  not 
be  justified  in  decreeing  a  sale  under  such  circumstances. 

23  Davis  7A  Davis,  2  I  red.  Eq.  607  ;  Gregory  v.  Gregory,  69  N. 
C.  522.  ante :  Joiinson  v.  Olmstead,  49  Conn.  517  ;  Scott  v.  Guern- 
sey, 48  N.  Y.  125. 

30  Helm  V.  Franklin,  5  Humph.  405. 

31  Baldwin  v.  Aldrich,  34  Vt.  529. 

32  Fleet  z/.  Dorland.  11  How.  Pr.  490,  ante  ;  Trull  v.  Rice,  85  N. 
C.  327  ;  Tucker  v.  Parks,  70  Ga.  414  ;  Wilson  v.  Duncan,  44  Miss. 
642  ;  Thurston  v.  Minke,  32  Md.  576,  ante  ;  Burgess  v.  Eastham,  3 
Bush,  476  ;  Branscomb  -v.  Gillian,  55  Iowa,  235.  See  40  Wis.  361  ; 
57  Am.  Dec.  198  ;  49  Id.  660  ;  105  U.  S.  401  ;  49  Conn.  509  ;  34  La. 
Ann.  969  ;  73  111.  405, 


SALE. 


325 


Neither  can  two  distinct  parcels  of  land  be  joined  in  one 
suit,  for  the  purpose  of  partition  and  sale,  unless  such 
parcels  of  land  shall  be  owned  by  the  same  co-tenants, 
— that  is,  the  persons  who  are  the  co-tenants  of  one  parcel 
must  be  the  co-tenants  of  the  other  parcel,  so  that  the 
two  parcels  may  be  partitioned  or  sold,  as  the  case  may 
be,  in  an  action  brought  for  that  purpose."  Actual  parti- 
tion is  a  matter  of  right  in  common  law.  When  a  parti- 
tion cannot  be  had  without  injury  to  the  interest  of  those 
who  own  the  premises  as  co-tenants,  an  actual  sale  and 
a  division  of  the  proceeds  of  such  sale  are  as  much  a  matter 
of  right  as  an  actual  partition  and  division  of  the  proceeds 
was  a  matter  of  right  under  the  common-law  rule/'  In 
some  instances,  an  appraisement  of  the  property  may  be 
had,  instead  of  an  actual  partition  or  enforced  sale." 

In  some  instances,  a  sale  of  the  premises  may  be 
prejudicial  to  the  interest  of  some  and  advantageous  to 
the  interest  of  the  other  co-tenants.  Then  there  must  be 
determined  the  question  of  whose  interests  shall  be 
consulted  and  promoted.  The  court,  in  making  its  decis- 
ion in  an  action  of  this  kind,  must  take  into  consideration 
the  statute  which  authorized  a  sale,  and  that  the  object 
of  such  statute  was  to  obviate  the  manifest  hardship  that 
might  arise  in  case  of  an  enforced  division  of  the  prop- 
erty. When  it  is  plain  that  a  division  of  the  property  can 
be  had  at  no  disadvantage  to  any  of  the  co-owners,  then 
such  division  of  the  property  should  be  had  in  preference 
to  a  sale  ;  but,  if  it  is  to  the  prejudice   of  all  the  owners 

33  Pankey  v.  Howard,  47  Miss.  87. 

34  Johnson  v.  Olmstead,  49  Conn.  '^17,  ante.  See  i  McCartner, 
489 ;  59  III.  103;  49Md.  12;  76N.  C.  191;  23  Conn.  97  ;  45  Iowa, 
510. 

35  King  z/.  Reed,  11  Gray.  490;  Dyer  z/.  Lowell,  38  Mc.  217. 


326  THE    LAW    OF    PARTITION. 

of  the  property  to  have  such  division,  then  there  should 
certainly  be  a  sale.  We  think  safe  to  say  that  the  preju- 
dice spoken  of  in  the  statute  means  a  prejudice  of 
all  the  owners  or  co-tenants,  and  not  to  a  part  of  those 
co-tenants  only.^'^  The  words  "  great  prejudice,"  as  used  in 
the  statutes,  will  not  justify  a  decree  of  sale,  where  the 
aggregate  amount  of  the  benefits  to  the  parties  from  a 
sale,  instead  of  an  actual  partition,  will  be  small,  in  refer- 
ence to  the  value  of  the  property  of  which  a  partition  or 
sale  is  sought.^' 

In  some  States  the  court  decides  whether  a  sale  shall 
be  had  or  not,  without  the  assistance  of  commissioners. 
In  New  York,  at  an  early  day,  it  was  held  that  the  Court 
of  Chancery  could  make  such  decision  without  the  assist- 
ance or  advice  of  such  commissioners.^'  Such  court  has 
the  authority  to  decide  that  a  sale  is  necessary,  and  to 
decree  such  sale,  where  the  ends  of  justice  require  it.  It 
is  the  more  usual  practice  to  refer  such  questions  to 
commissioners.  The  court  makes  its  decree  after  having 
received  the  report,  assistance  and  advice  of  such  commis- 
sioners.^^ The  court,  in  deciding  upon  a  sale,  usually 
appoints  a  referee  or  commissioners  to  make  such  sale, 
though  under  some  of  the  statutes  this  duty  falls  upon 
the  sheriff  of  the  county  in  which  the  land  is  situate. 
The  manner  of  conducting  the  sale,  the  duties  and 
powers  of  the  referee,  commissioners  or  officers  conduct- 
ing the  same,  are  laid  down  in  the  statutes  of  each  of  the 
States  where  the  action  of  partition  has  become  a  statu- 

•*6  Clason  V.  Clason,  6  Paige,  545,  an/e. 

37  Smith  V.  Smith,  10  Paige,  470;  citing  14  Wend.  204;  5  N. 
H.    134  ;  2  Blunt  Amb.  589  ;  1  Peere  Wms.  446.    See  2  Barb.  601. 

38  Thompson  z/.  Hardman,  6  Johns.  Ch.  436. 

39  Lake  7/.  Jarrett,  12   Ind.  395  ;  19  Wen^.  226;  49  Am.   Dec 
660 ;  43  Ga.  386  ;  59  111.  218. 


SALE. 


127 


tory  action.  But  the  usual  practice  under  the  Code,  which 
will  be  explained  hereafter  in  this  chapter, — it  being  the 
practice  of  advertising  the  land  a  certain  number  of 
weeks,  and  of  disposing  of  the  same  to  the  highest 
bidder,  at  public  vendue, — is  generally  that  practice  which 
is  safe  to  follow,  and  that  practice  which  gives  to  the 
purchaser  a  perfect  title  of  that  which  he  purchased.'" 
When  judgment  shall  have  been  rendered  in  an  action 
for  partition,  and  a  sale  of  such  property  is  directed,  the 
officer  making  such  sale  must,  out  of  the  proceeds  which 
he  receives  from  the  sale,  pay  all  taxes  and  assessments 
which  are  liens  upon  the  property.  The  payment  of 
taxes  and  assessments  is  something  that  must  be  done, 
otherwise  the  purchaser  of  the  premises  would  not  receive 
a  good  title,  which  is  guaranteed  to  him  under  the 
statute,  or,  in  other  words,  he  should  receive  as  good  a 
title  as  the  common  ancestor  had,  which  title  should  be 
free  and  clear  from  all  liens,  rights  of  dower,  taxes  or 
assessments.^  A  person  entitled  to  the  surplus  moneys 
upon   such   a   sale,  is  not  aggrieved    because    the    court 

40  Wainwright  -v.  Rowland,  25  Mo.  53;  Allen's  Estate,  11  Phila. 
48  ;  Blue  V.  Blue,  79  N.  C.  69  ;  Fisher  v.  Hersey,  78  N.  Y.  387.  See 
17  Hun,  370;  57  Miss.  316;  90  N.  C.  581  ;  16  S.  C.  496  ;  8  W.  Va. 
249  ;  65  Mo.  290  ;  82  N.  C.  377. 

**  Where  a  judgment  rendered  in  an  action  for  partition,  for 
dower,  or  to  foreclose  a  mortgage  upon  real  property,  directs  a 
sale  of  the  real  property,  the  officer  making  the  sale  must,  out  of 
the  proceeds,  unless  the  judgment  otherwise  directs,  pay  all 
taxes,  assessments  and  water  rates,  which  are  liens  upon  the 
property  sold,  and  redeem  the  property  sold  from  any  sales  for 
unpaid  taxes,  assessments  or  water  rates,  which  have  not  apjiar- 
ently  become  absolute.  The  sums  necessary  to  make  those 
payments  and  redemptions,  are  deemed  expenses  of  the  sale, 
within  the  meaning  of  that  expression,  as  used  in  any  provision 
of  article  second,  third  or  fourth  of  this  title.  N.  Y.  Code  Civ. 
Pro.  I  1676. 


o 


28  THE    LAW    OF    PARTITION. 


makes  an  order  requiring  the  referee  to  pay  off  the 
liens."  If  the  premises  are  a  leasehold,  it  is  proper  for 
the  court  to  order  taxes  and  assessments  paid  from  the 
proceeds.^-  The  judgment  should  be  entered  in  the 
county  where  the  property  is  situated.  If  the  action  be 
in  a  county  other  than  the  county  where  the  land 
is  situated,  the  judgment  then  would  be  entered  in 
the  county  in  which  it  was  rendered  ;  but  it  also  must  be 
entered  in  the  county  where  the  land  is  situate.  The 
clerk  of  the  latter  county  must  enter  the  same  upon  the 
judgment-book  kept  by  him  for  that  purpose.* 

The  sale  must  be  by  public  vendue  to  the  highest 
bidder.  Notice  of  such  sale  must  be  given  by  the  officer 
making  it,  in  accordance  with  the  rules  of  practice  relative 
to  judicial  sale  of  real  estate.  Notice  of  sale  must  be  pub- 
lic. If  the  land  be  wholly  situated  in  one  county,  it  is  suffi- 
cient if  the  publication  of  notice  of  sale  be  in  that  county 
alone.  The  terms  of  the  sale  must  be  made  known  at 
the  time  of  the  sale  ;  and  if  the  property,  or  any  part  of 
it,  is  to  be  sold  subject  to  any  right  of  dower  or  estate, 
that  fact  must  be  declared  at  the  time  of  the  sale  by  the 
referee,  commissioners  or  officers  in  charge.^     The  publi- 

*1  Easton  v.  Pickersgill,  55  N.  Y.  310.  See  ']^  N.  Y.  203;  56 
How  Pr.  368  ;  II  Abb.  Pr.  N.  C.  48  ;  33  N.  Y.  203. 

42  Catlin  V.  Grissler,  57  N.  Y.  363.     See  9  N.  Y.  Week.  Dig.  434. 

*  Where  real  property,  sold  by  virtue  of  a  judgment 
rendered  in  an  action  specified  in  the  last  section,  is  situated  in  a 
county  other  than  that  in  which  the  judgment  is  entered,  the 
judgment  must  be  also  entered  in  the  office  of  the  clerk  of  the 
county  wherein  the  property  is  situated,  before  the  purchaser  can 
be  required  to  pay  the  purchase  money  or  to  accept  a  deed.  The 
clerk  of  the  latter  county  must  enter  it  in  the  judgment-book 
kept  by  him,  upon  filing  with  him  a  notice  thereof,  certified  by 
the  clerk  with  whom  it  is  entered.     N.  Y.  Code  Civ.  Pro.  §  1677. 

K  A  sale,  made  in  pursuance  of  any  provision  of  this  title,  must 
be  at  public  auction  to  the  highest  bidder.     Notice  of  such  a  sale 


SALE.  329 

cation,  where  the  land  is  situated  in  a  city,  may  be  twice  in 
one  week  for  the  space  of  three  successive  weeks  in  some 
daily  newspaper  published  in  such  city."  The  statutory 
provision  as  to  selling  is  merely  directory,  and  a  sale 
not  conforming  thereto  is  not  void,  but  voidable."  Three 
publications  of  the  notice  of  sale  of  an  advertisement  for 
three  weeks,  instead  of  six,  is  an  error,  but  can  be 
amended.'^ 

An  agreement  preventing  competition  at  a  public 
sale, — that  is,  a  contract  founded  on  an  agreement 
between  two  persons,  the  one  holding  the  legal  title  and 
another, — is  void  as  against  public  policy,  and  even  though 
there  has  been  performance  on  one  side  by  the  paying  of 
money,  the  court  will  not  interfere  by  compelling  a  speci- 
fic performance  of  the  agreement,  or  to  compel  a  restitu- 

must  be  given  by  the  officer  making  it,  as  prescribed  in  section 
1434  of  this  act,  for  the  sale  by  a  sheriff  of  real  property,  by  virtue 
of  an  execution,  unless  the  property  is  situated  wholly  or  partly 
in  a  city  in  which  a  daily  newspaper  is  published,  and  in  that  case 
by  publishing  notice  of  the  sale  at  least  twice  in  each  week  for  the 
three  successive  weeks  immediately  preceding  the  sale,  in  one,  or 
in  the  city  of  New  York  or  the  city  of  Brooklyn,  in  two  of  such 
papers.  Notice  of  a  postponement  of  the  sale  must  be  published 
in  the  paper  or  papers  wherein  the  notice  of  sale  was  published, 
The  terms  of  the  sale  must  be  made  known  at  the  time  of  sale  ; 
and  if  the  property,  or  any  part  thereof,  is  to  be  sold  subject  to  a 
right  of  dower,  charge  or  lien,  that  fact  must  be  declared  at  the  time 
of  sale.  If  the  property  consists  of  two  or  more  distinct  buildings, 
farms  or  lots,  they  shall  be  sold  separately,  unless  otherwise 
ordered  by  the  court ;  and  provided,  further,  that  where  two  or 
more  buildings  are  situated  on  the  same  city  lot,  they  may  be  sold 
together.     N.  Y,  Code  Civ.  Pro.  §  1678. 

*3  Chamberland  v.  Dempsey,  22  How  Pr.  356;  citing  21  N.  Y 
150;  5  Id.  497;  Barnes,  74;  6  Bing.  377;  i  Chitty,  6,  7,  8. 

^  Cunningham  v.  Cassidy,  7  Abb.  Pr.  183;  17  N.  Y.  276.  See  i 
Johns.  Ch.  502. 

*5  Alvord  V.  Beach,  5  Abb.  Pr.  451. 


330  THE    LAW    OF    PARTITION. 

tion  of  the  money  paid/®  The  employment  of  what  is 
known  in  law  as  a  puffer,  or  a  person  to  bid  up  the  prop- 
erty as  against  ^o;/^yz^^  purchasers,  is  a  fraud,  and  a  sale 
made  under  such  circumstances  will  be  set  aside/'  The 
auctioneer  cannot  legally  be  a  bidder  on  his  own  ac- 
count. Equity  will  not  allow  the  party  to  retain  the 
proceeds  of  a  fraud  committed  by  his  own  agent.  Where 
false  steps  are  taken  to  enhance  the  price  of  the  property 
sold  at  auction,  a  court  of  equity  will  relieve  the  pur- 
chaser from  the  consequences  and  injury  caused  by  such 
unfair  means.''  If  the  bidding  of  the  puffers,  or  bidders, 
mislead  and  deceive  a  buyer  in  the  interest  of  the  owner, 
it  will  vitiate  the  sale.''^  Underbidding  by  the  owner  or 
auctioneer  vitiates  the  sale.^"  Upon  a  sale  of  real  estate 
by  auction,  under  conditions  stating  that  the  sale  is  sub- 
ject to  a  reserved  bidding,  it  is  illegal  to  employ  a  person 
to  bid  up  to  the  reserve  price,  unless  the  right  to  do  so  is 
expressly  stipulated  for.^^ 

The  sheriff  or  party  making  the  sale  is  liable  to 
account  to  the  parties  interested  for  the  proceeds  of  the 
sale  of  the  land,  although  the  attorney  for  the  plaintiff 
may  have  conducted  the  sale,  and  have  received  such 
proceeds.''  On  the  sale  in  partition,  the  referee  is  entitled 

46  Wheeler  v.  Wheeler,  5  Lans.  355. 

47  Fisher  v.  Hersey,  1 7  Hun,  370  ;  3  Madd.  112;  2  Kent,  423 ; 
3  Ves.  268;  2  Dev.  126;  12  Ves.  477- 

48  Veazie  v.  Williams,  8  How.  U.  S.  134. 

49  3  Ves.  625;  12  Id.  477;  2  How.  Pr.  28  ;  i  Brown,  346;  5  Ves. 
508  ;  5  Madd.  34;  3  Bing.  368  ;  13  Ves.  25. 

50  Trust  V.  Delaplaine,  3  E.  D.  Smith,  21.9. 

51  Gilliat  V.  Gilliat,  9  L.  R.  Eq.  60;  39  L.  J.  Ch.  142.  See  6 
Ves.  617;  8  Id.  337;  Babington  on  Auctions,  164;  15  Pick.  300; 
Mason,  344;  20  Wend.  343;  Ross  on  Sales,  311  ;  12  East,  632;  i 
Hill,  317;  4  Pet.  328. 

52  Van  Tassel  v.  Van  Tassel,  31  Barb.  439. 


SALE.  331 

to  commissions  by  virtue  of  the  New  York  Laws  of  1869, 
chapter  569,  and  the  New  York  Laws  of  1874,  chapter 
192  ;  and  also  is  entitled  to  the  fees  allowed  to  a  sheriff 
in  a  foreclosure  case."  The  commission  is  for  the  receiv- 
ing and  paying  out  of  the  money,  and  for  that  alone. 
Commissions  cannot  be  charged  upon  the  amount  secured 
by  a  mortgage,  or  the  amount  of  a  mortgage  upon  the 
premises,  which  remains  there  after  the  sale,  the  sale 
being  subject  to  such  mortgage.'*  If  one  sale  flills 
through,  and  thereafter  there  is  a  sale,  the  party  conduct- 
ing the  same  can  receive  pay  for  only  one  sale." 

The  court  may  amend  the  judgment  during  the  run- 
ning of  the  notice  of  sale,  and  the  validity  of  the  sale  is 
not  affected  by  such  amendment."^  The  court  is  not  sup- 
posed to  amend  so  as  to  affect  the  rights  of  any  of  the 
parties,  but  when  an  amendment  is  needed  in  the  inter- 
est of  justice  and  equity,  it  has  the  right  to  make  it.  It 
has  been  held,  where  upon  a  judgment  of  sale  the  sale 
was  directed  to  be  advertised  three  weeks  instead  of  six, 
as  required  by  law,  but,  in  fact,  the  advertisement  was 
published  six  weeks,  that  the  error  might  be  corrected 
on  motion,  and  the  purchaser  be  compelled  to  take 
title."'  The  question  whether  a  sale  is  proper  or  not  is 
is  one  that  must  be  determined  by  the  circumstances  of 
the  case  ;  and  whether  it  shall  be  sold  in  one  parcel  is 
also  a  question  subject  to  the  circumstances  of  the  case 
and  within  the  wisdom  of  the  court/' 

53  Richards  7/.  Richards,  76  N.  Y.  186;  confirming  14  II  mi.  ..j. 

54  Strauss  V.  Hellman,  58  How.  Pr.  376. 

5^  Walbridge  v.  James,  16  Hun,  8  ;  56  How.  Pr.  1S5. 

^fi  Valentine  v.  McCue,  26  Hun,  456. 

•''''  Alvord  V.  Beach,  5  Abb.  Pr.  451,  ante.  Sec  Gaskin  v.  Ander- 
son, 55  Barb    259. 

'•>^  Wallace  v.  Feely,  61  How.  Pr.  225.  See  S  Civ.  I'ro.  K.  126; 
lo  Daly,  331. 


332  THE    LAW    OF    PARTITION. 

The  commissioner,  or  officer,  making  the  sale  shall 
not,  directly  or  indirectly,  purchase,  or  be  interested  in 
the  purchase  of  any  part,  or  the  whole  of  the  property 
sold.  Neither  shall  a  guardian  of  an  infant  be  likewise 
interested  in  the  purchase  of  any  of  the  property,  except 
where  he  is  legally  authorized  to  do  so  for  the  benefit,  or 
in  behalf  of  his  ward.  Any  person  violating  the  law  of 
the  New  York  statute  on  that  subject  is  guilty  of  a  mis- 
demeanor, and  the  purchase  made  by  him  is  void.^  An 
executor  or  administrator  may  bid  in  property  for  the 
estate  of  which  he  is  the  representative,  for  the  purpose 
of  saving  to  the  estate  the  interest  or  lien  upon  the  real 
estate  that  is  to  be  sold  which  forms  a  part  of  the  assets 
coming  into  the  custody  of  the  administrator  or  execu- 
tor.^' The  purchase  so  made  by  him  would  be  for  the 
benefit  of  the  estate,  and  would  not  be  his  individual 
property,  as  administrators  and  executors  cannot  spec- 
ulate with  the  funds  that  are  in  their  custody  belonging 
to  the  estate  of  the  deceased  person  whom  they 
represent.®"  Where  a  trustee  to  sell,  or  one  having 
power  to  sell  in  trust,  bids  in  the  property  at  the  sale 
for  himself,    the  transaction    is  not    void,  but  voidable." 

*"  A  commissioner,  orother  officer,  makinga  sale,  as  prescribed 
in  this  title,  or  a  guardian  of  an  infant  party  to  the  action,  shall 
not,  nor  shall  any  person,  for  his  benefit,  directly  or  indirectly, 
purchase,  or  be  interested  in  the  purchase  of,  any  of  the  property 
sold  ;  except  that  a  guardian  may,  where  he  is  lawfully  authorized 
so  to  do,  purchase  for  the  benefit  or  in  behalf  of  his  ward.  The 
violation  of  this  section  is  a  misdemeanor ;  and  a  purchase  made 
contrary  to  this  section  is  void.     N.  Y.  Code  Civ.  Pro.  §  1679. 

^^V  alentine  v.  Beiden,  20  Hun,  537. 

'^^  2  Johns.  Ch.  252  ;  9  Paige,  237  ;  5  Sandf.  592;  19  How.  U.  S. 
n6;  I  Williams  on  Exec.  607  ;  8  Paige,  153;  6  Id.  448. 

61  Boerum  v.  Schenck,  41  N.  Y.  182.  See  17N.Y.  403;  9 
Paige,  238;  5  Den.  157. 


SALE.  '^-'i 

*J  \J  \J 

The  fact  that  a  fair  value  is  received  upon  the  sale  of  the 
premises,  does  not  give  a  validity  to  the  sale  :  nor  is  it 
material  that  the  agreement  might  be  void  under  the 
statute  of  frauds." 

The  sale  shall  be  conducted  in  a  fair  manner.  If  the 
property  that  is  exposed  for  sale  consists  of  two  or  more 
lots,  tracts,  or  parcels,  each  lot,  tract,  or  parcel  must  be 
separately  exposed  for  sale.  "  A  written  or  printed  no- 
tice of  the  sale  must  be  conspicuously  fastened  up  in 
three  public  places,  in  the  town  or  city  where  the  sale  is 
to  take  place,  and  also  in  three  public  places  where  the 
land  is  situated.  These  notices  must  be  fastened  up,  at 
least  forty-two  days  previous  to  the  time  of  sale.  A  copy 
of  the  notice  must  be  published,  at  least  once  in  each 
week  for  six  successive  weeks  immediately  preceding 
such  sale,  in  a  newspaper  published  in  the  county,  if  there 
is  one  ;  or  if  there  is  no  newspaper  published  in  the 
county  where  the  land  is  situated,  then  in  such  paper  as 
is  provided  for,  or  shall  be  provided  for,  in  which  legal 
notices  are  required  to  be  published.  "  It  is  the  duty  of 
the  officer  making  the  sale  to  see  that  the  notice  is  given 
as  required  by  the  Code.  "  The  publication  is  sufficient, 
if  inserted  once  in  each  week  for  six  weeks  before  the  sale, 
although  six  full  weeks  should  not  have  elapsed  between 
the  date  of  the  first  publication  to  the  day  of  the  sale. 
In  absence  of  proof  to  the  contrary,  it  will  ordinarily  be 


62  Terwilliger  i/.  Brown,  44  N.  Y.  237.     See  26  N.  Y.  53. 

63  O'Donnell  v.  Lindsay,  39  N.    Y.   Super.    533  ;    Sugwell  v. 
Bussing.  4  T.  &C.  6S1  ;  48  How.  Pr.  89. 

64  O'Donnell  z/.  Lindsay,  39  N.  Y.  Super.    523,  a/i/e  ;  Olcott  ?/. 
Robinson,  21   N.  Y.  159  ;  Wood  v.  Morehouse,  45  N.  Y.  369. 

65  N.  Y.  Code  Civ.  Pro.  §  i434- 


334  THE    LAW    OF    PARTITION. 

presumed   in   favor  of  a  sale,    that  the  sheriff  has   duly- 
posted  the  proper  notices.  ^^ 

On  an  order  granting  a  rehearing,  where  it  appears 
that  when  the  case  was  before  the  court  for  the  first  time, 
it  was  reversed  on  the  ground  of  a  defect  in  the  advertise- 
ment of  sale,  and  that  the  proofs  were  not  then  all  before 
the  court,  and  by  the  perfected  proofs  it  appears  that 
there  was  evidence  of  the  requisite  advertisement  of  sale 
before  the  vice  chancellor  and  a  decision  on  that 
point  which  has  not  been  appealed  from,  the  decree 
of  the  court  should  be  affirmed,  and  was  affirmed. 
The  court  based  the  ground  of  its  decision  upon 
the  fact  that  they  found  that  there  was  evidence 
before  the  vice  chancellor  on  the  subject  of  putting  up 
the  requisite  notices  advertising  the  sale,  and  that  there 
was  a  decision  on  that  point.  In  proving  title  it  is 
essential  that  the  order  or  decree  directing  the  deed  to  be 
made,  and  the  deed  itself,  should  be  proved  ;  but  it  is  not 
necessary  that  the  regularity  of  the  proceedings  previous 
to  the  time  of  the  making  of  the  decree  should  be  proven. 
And  it  has  often  been  held  that  such  a  decree  should  not 
be  opened  or  set  aside  upon  the  ground  of  fraud  or  mis- 
take, upon  petition  of  parties,  by  bill  of  review,  or  by  a 
supplemental  bill  in  the  nature  of  a  bill  of  review.  " 

66  Wood  V.  Morehouse,  45  N.  Y.  368,  rt;//^/ confirming  i  Lans. 
405  ;  21  N.  Y,  150;  reversing  20  Barb.  148. 

67  Rudderrow  v.  Dudley,  5  Cent.  R.  802  ;  Obert  v.  Hammel, 
3  Har.  73.  See  4  Zab.  476;  5  Dutch.  334  ;  4  Id.  32  ;  Whittemore  v. 
Coster,  3  Green  Ch.  438 ;  Robertson  v.  Miller,  2  Id.  451;  2  McCart- 
ney, 123;  2  Beas.  35,  36;  10  C.  E.  Green,  305. 


CHAPTER  XXII. 


FINAL  JUDGMENT   CONFIRMING  SALE. 

It  is  essential  that  the  sale  shall  be  confirmed  by  the 
court.  Before  the  sale  has  been  confirmed,  although  money 
may  have  been  paid,  and  although  the  purchaser  may 
have  taken  possession  of  the  premises,  the  proceedings 
are  not  considered  complete  or  final;  and  the  sale  should 
be  confirmed  by  a  final  decree,  made  by  the  court  for  that 
purpose,  which  final  decree  shall  be  duly  entered  in  the 
same  office,  together  with  the  other  proceedings  pertain- 
ing to  the  action.^  After  the  confirmation  of  the  sale 
shall  have  been  made,  the  purchaser  of  the  premises,  if 
he  has  not  already  done  so,  should  then  comply  with  the 
terms  of  his  purchase,  to  entitle  himself  to  a  conveyance 
of  the  premises.  Upon  his  failure  to  so  comply,  or  for 
any  sufficient  cause,  the  court  will  direct  a  resale  of  the 
premises,  which  resale  will  be  ordered  after  notice  has 
been  given  to  the  purchaser  of  the  intention  of  the 
court,  and  that  application  will  be  made  to  the  court  to 
make  such  order  of  resale." 

When  the  sale  is  confirmed  by  the  court,  a  final 
judgment  must  be  entered  of  such  confirmation,  and  such 

1  Loyd  V.  Loyd.  i6  N.  W.  R.  117;  Parkinson  v.  Caplinger, 
65  Mo.  290. 

2  Burgin  v.  Burgin,  82  N.  C.  196  ;    Ex  parte  White,  82  Id.  377. 

[335] 


336  THE    LAW    OF    PARTITION. 


final  judgment  will  direct  the  officers,  or  officer,  making 
such    sale,    to    make,    execute    and    deliver   the    proper 
conveyances,  and  to  take  such  proper  securities  as  may 
be  within  the  direction  and  discretion  of  the  court,  as  set 
forth  in  its  previous  decree.     Such   a   final  judgment  is 
binding   and    conclusive  upon    the    same    parties,    upon 
whom  a  final  judgment  in  partition,  where  there  has  been 
an  actual  division  and  allotment  of  the  land,  would  be 
binding  ;    and    it    effectually  and  forever    bars  each   and 
every  person,  who  is  not  a  purchaser  at  the  sale,  and  who 
has  been  brought  properly  within  the  jurisdiction  of  the 
court,  from  any  or  all  right,  title,  interest,  lien  or  claim  in 
or  to  any  part  or  the  whole  of  the  premises  sold,  and  the 
purchaser  receives  a  title  of  the  premises  so  purchased  at 
such  sale  by  him,  free  and  clear  from  any  of  the  rights  or 
interests  of  any  person  who  may  have  a  lien,  title,  estate, 
or  right  of  possession  of  such  iands.^     The  purchaser  at 
a  sale  has  a  right  to  require  and  receive  a  good  title,  and 
is  not  bound  to  take  that  which  to  him  is  an  uncertainty, 
or  to  hazard  his  interests  by  taking  such  title,  the  result 
of  which,  might  bring  on  a  contest  or  litigation  with  other 
parties.'     The  partition  should  be  respected,  and  in  case 
there  has  been  a  sale  of  the  property,  that  sale  should  be 
respected.     The  judgment  of  confirmation  should  not  be 

*If  the  sale  is  confirmed  by  the  court,  a  final  judgment  must 
be  entered,  confirming  it  accordingly ;  directing  the  officer 
making  it  to  execute  the  proper  conveyances,  and  take  the  proper 
securities  pursuant  to  the  sale  ;  and  also  directing  concerning  the 
application  of  the  proceeds  of  the  sale.  Such  a  final  judgment 
is  binding  and  conclusive  upon  the  same  persons  upon  whom  a 
final  judgment  for  partition  is  made  binding  and  conclusive  by 
section  1557  of  this  act;  and  it  effectually  bars  each  of  those 
persons,  who  is  net  a  purchaser  at  the  sale,  from  all  right,  title  and 
interest  in  the  property  sold.     N.  Y.  Code  Civ.  Pro.  §  1577. 

3   Jordan  -v.  Poillon,  ']^  N.  Y.  518. 


FINAL   JUDGMENT   CONFIRMING    SALE.  ^^X^ 

decreed  by  the  court,  if  the  jurisdiction  of  the  court  is 
doubtful,  or  if  its  jurisdiction  of  the  parties  is  not  full 
and  complete ;  but  when  the  court  properly  has 
the  subject-matter  and  all  the  parties  before  it,  its 
decree  confirming  the  sale,  nothing  appearing  to  gainsay 
it,  should  be  respected/  Under  the  statutes  of  New 
York  State, when  all  the  parties  in  being  having  any  estate 
or  interest,  present  or  future,  vested  or  contingent,  in  the 
lands,  are  made  parties  to  an  action  for  partition,  a 
purchaser  at  a  sale  under  a  judgment  therein,  acquires 
perfect  title  to  the  land  purchased  by  him.  Such  judg- 
ment is  conclusive  as  to  the  rights  of  all,  and  the  sale  had 
is  effectual  to  bar  the  future  contingent  interests  of 
persons  not  zn  esse  at  the  time,  although  no  notice  is 
published  to  bring  in  unknown  parties,  and  although  such 
future  owners  may  take  as  purchasers,  under  a  deed  or 
will,  and  not  as  claimants  under  any  of  the  parties  to  the 
action.'  The  final  order  of  sale  in  a  partition  suit  has  the 
force  and  effect  of  a  judgment  which  binds  the  parties, 
where  there  is  complete  jurisdiction,  whatever  errors  or 
irregularities  may  have  preceded  it.  An  omission  from  a 
referee's  advertisement  of  sale  of  a  portion  of  the  lands 
embraced  in  the  action  and  directed  to  be  sold  by  the 
judgment,  did  not  vitiate  a  sale  by  the  referee  of  the 
omitted    portion,    where,    upon    motion    made,    on    due 

4  McLenathan  v.  McLenathan,  2  Pen.  &  W.  279;  Manly  7/. 
Pettee,  38  111,  128  ;  Wood  v.  Fleet,  36  N.  Y-  499.  See  4  N.  Y.  257  ; 
9  Johns.  270;  4  Id.  202;  20  Barb.  123;  25  Wend.  434;  3  Ed w.  Ch.; 
513;  22  Wend.  512;  I  Paige,  471;  7  Johns.  414;  4  Paige,  441  ;  3 
Bosw.  430;  Pomeroy  Remedies  &  Rem.  R.  §§  373,  374;  7  How.  307; 
15  Johns.  160. 

^  Brevooit  v.  Brevoort,7o  N.  Y.  137.  See  6  Sim.  643;  10  Paige. 
473;  2  Freem.  26;  17  Vcs.  552  ;  Atnb.  236  ;  15  N.  Y.  617  ;  17  Id.  210; 
37  Id.  59 ;  6  Ves.  498  ;  7  Paige,  544  ;  4  Ala.  475. 
22 


338  THE    LAW    OF    PARTITION, 

notice  to  all  the  parties  interested,  the  sale  was  confirmed; 
and  the  irregularity  was  not  a  defect  to  the  title 
acquired  on  such  sale/  Such  an  error  is  one  which  can  be 
corrected  by  any  party  to  the  record  upon  proper  appli- 
cation to  the  court.'  The  final  order  of  confirmation  has 
the  force  and  effect  of  a  judgment  which  binds  the 
parties,  where  there  has  been  complete  jurisdiction, 
whatever  may  have  been  the  errors  or  irregularities  which 
preceded  it.'  The  sale  of  real  estate  in  which  infants 
have  an  undivided  interest,  subject  to  the  life  estate  of 
their  mother,  under  a  decree  in  a  suit  for  partition, 
brought  by  one  of  the  other  tenants  in  common,  does  not 
change  the  character  of  the  infant's  estate  in  the 
proceeds,  but  they  are  treated  as  realty,  and  not  as 
personalty.' 

The  final  judgment  is  a  bar  against  any  person  who 
was  not  a  party  to  the  action,  and  who,  at  the  time  the 
judgment  was  rendered,  had  a  general  lien,  by  judgment 
or  decree  in  his  favor,  upon  the  undivided  share  or  inter- 
est of  any  one  of  the  co-tenants  to  the  property,  provid- 
ing notice  was  given  to  such  person  to  appear  before  the 
referee  and  make  proofs  of  the  liens,  as  prescribed  by 
the  Code  and  by  the  rules  of  the  court.  But  a  person 
having  a  specific  lien,  and  the  same  appearing  upon  the 
record  at  the  time  of  the  filing  of  the  notice  of  pendency 
of  the  action,  who  is  not  made  a  party,  is  not  affected  by 
the  judgment,  and  his  lien  or  interest  is  not  barred  or  cut 

6  WoodhuU  V.  Little,  102  N.  Y.  165.     See  N.  Y.  Code,  §§  1386, 
1532,  1595,  721  ;  Field  Lawy.  Br.  495,  497. 

7  Abbott  V.  Curran,  98  N.  Y.  665. 

8  Blakely  v.  Calder,  15  N.  Y.  617,  ante. 

9  I   Hun,  473  ;   citing  3  Sandf.  Ch.  456  ;  47  N.  Y.  21  ;  4  Paige, 
102 ;  I  Duer,  286. 


FINAL    JUDGMENT   CONFIRMING    SALE.  339 

off,  by  reason  of  the  final  judgment  of  confirmation.'' 
In  case  a  contest  should  arise  as  to  the  distribution  of  the 
fund,  and  where  several  creditors  or  legatees  are  entitled 
to  a  ratable  proportion  of  the  common  fund,  wliich  is 
insufficient  for  the  payment  of  their  debts  or  legacies,  all 
the  creditors  or  legatees  should  be  made  parties  to  a  bill 
filed  for  the  distribution  of  such  fund  ;  or  a  bill  should  be 
filed  by  a  part  of  the  creditors,  in  behalf  of  themselves 
and  of  all  persons  standing  in  like  situation  in  reference 
to  such  fund.^ 

After  completing  the  sale,  the  report  of  the 
referee  or  officer  making  the  sale  should  be  made  to  the 
court,  under  oath,  and  such  report  should  contain  a 
description  of  the  different  parcels  of  land  sold  to  each 
purchaser,  the  name  of  such  purchaser,  and  the  price  bid 
by  him  for  the  same  ;  and  such  report  should  be  filed  with 
the  court.  The  New  York  Revised  Statutes  provide,  "  If 
such  sales  be  approved  and  confirmed  by  the  court,  an 
order  shall  be  entered,  directing  the  commissioners,  or  any 
two  of  them,  to  execute  conveyances  pursuant  to  such 
sales  ;  which  they  are  hereby  authorized  to  do."  '° 

^Such  a  final  judgment  is  also  a  bar  against  each  person,  not 
a  party,  who  has,  at  the  time  when  it  is  rendered,  a  general  lien, 
by  judgment  or  decree,  on  the  undivided  share  or  interest  of  a 
party,  if  notice  was  given  to  appear  before  the  referee,  and  make 
proofs  of  liens,  as  prescribed  in  section  1562  of  this  act,  and  also 
against  each  person  made  a  party,  who  then  has  a  specific  lien  on 
any  such  undivided  share  or  interest  ;  but  a  person  having  any 
such  specific  lien  appearing  of  record  at  the  time  of  the  filing  of 
the  notice  of  the  pendency  of  the  action,  who  is  not  made  a. 
party,  is  not  affected  by  such  judgment.  N.  Y.Code  Civ.  I'ro. 
§  1578.  See  12  Wend.  269  ;  10  How.  188  ;  27  Id.  289  ;  6  Abb.  Pr.  59; 
4  Paige,  481  ;  L,  N.  Y.  ch.  320. 

^  Egberts  z/.  Wood,  3  Paige,  517  ;  citing  2  Ves.  Sr.  311  ;  i  Paige 
20;  13  Ves.  397  ;  14  Wash.  C.  Ct.  232;  5  Cranch,  300. 

i«3N.  Y.  R.  S.  6ed.  593,§73- 


340 


THE    LAW    OF    PARTITION. 


The  Revised  Statutes  further  provide  that  convey- 
ances made  and  executed  by  the  officer  or  persons  making 
such  sale,  shall  be  recorded  in  the  county  where  the 
premises  are  situated  ;  and  that  the  same  shall  be  a  bar, 
both  in  law  and  equity,  against  all  persons  interested  in 
such  premises  in  any  way  whatever,  who  shall  have  been 
named  as  parties  to  the  proceedings  ;  and  against  all  such 
persons  and  parties  who  were  unknown,  if  notice  shall 
have  been  given  of  the  application  for  partition,  in  the 
manner  prescribed  by  law  ;  and  shall  also  be  a  bar  against 
any  persons  having  general  liens  or  incumbrances  by 
reason  of  any  judgment  or  decree  on  any  undivided  share 
or  interest  in  the  premises  sold,  providing  they  shall 
have  had  the  notice  recorded  by  the  rules  and  practice 
of  the  court." 

Upon  the  sales  being  confirmed  by  the  court  by  its 
decree,  the  person  or  persons  appointed  by  the  court  to 
make  such  sale,  shall  deliver  the  mortgages  or  other  secu- 
rities given  by  the  purchaser  pursuant  to  the  judgment  of 
the  court  allowing  such  mortgages  or  securities  to  be 
made,  to  the  treasurer  or  chamberlain  of  the  county,  or 
to  the  co-owners,  whose  shares  in  the  premises  were  thus 
invested. 

11  3  N.  Y.  R.  S.  6ed.  593,74,75;  Mead  t/.  Mitchell,  17N.Y.  217;  1 
Edw.  Ch.  629  ;  7  Paige,  386  ;  22  Wend.  520  ;  3  Paige,  656;  4  Id.  442* 


CHAPTER  XXIII. 


COSTS. 


The  costs  and  expenses  in  equity  actions  are,  in  gen- 
eral, to  a  certain  extent,  within  the  judicial  discretion  of 
tlie  court  ;  and  in  the  absence  of  any  statutory  provisions 
pertaining  thereto,  the  court  exercises  its  discretion 
wholly  as  to  the  costs  and  expenses,  and  as  to  what  part 
of  the  property,  or  the  proceeds  of  the  sale  of  the 
property,  shall  be  charged  therewith. 

In   section    1559   of  the    New    York   Code    of    Civil 
Procedure,  which  has  been  referred  to  in  another  chapter 
in     this     work,    we   called   attention     to    the    fact   that 
costs    upon    a   final    judgment   are    a^varded   as   against 
unknown  owners,  or,  rather,    unknown  parties.     By   that 
section  provision   was  made  that  the  final  judgment  for 
the   partition   of  the   property  should  award    that    each 
defendant   pay   to   the    plaintfff  his    proportion    of    the 
plaintiff's  costs,  including  any  extra  allowance  that  might 
be  decreed  by  the  court  ;  and  that  the  sum  so  paid  should 
be  fixed  by  the  court,  and  fixed  according  to  the  respect- 
ive rights  and  interests  of  the  parties  as  set  forth  in  such 
final  judgment.     The  same  section  also  makes  provision, 
in  case  of  an   unknown   defendant,  that  his  proportion  of 
the    costs    shall  be  fixed   and  specified  in  the  judgment, 
in  the  same  manner  as  if  such  defendant  were  known,  and 

t34'J 


342  THE    LAW    OF    PARTITION. 

chargeable  to  such  unknown  defendant's  share,  and  paya- 
ble from  out  of  the  proceeds  of  the  sale  of  his  share,  as 
if  he  were  known  and  personally  present  before  the 
court  ;  and  that  an  execution  can  be  issued  to  collect  the 
costs  thus  decreed  against  an  unknown  defendant,  the 
same  as  if  he  were  known  and  were  named  in  the  judg- 
ment. The  right,  share  or  interest  of  an  unknown 
defendant  in  the  property  may  be  sold  by  virtue  of  such 
execution,  for  the  purpose  of  collecting  the  costs  decreed 
against  him  by  the  judgment.' 

Where  it  appears  that  the  parties  to  the  action  are 
tenants  in  common  of  only  a  part  of  the  land,  and  that 
partition  is  made  of  that  part  only,  the  defendant  whose 
rights  are  attacked  by  reason  of  his  being  a  tenant  in 
common  of  that  part  of  the  land  partitioned,  but  having 
the  title  or  an  interest  in  that  portion  of  the  land  not 
partitioned,  is  entitled  to  his  costs."  Necessary  parties  to 
the  action,  who  are  brought  in  without  the  consent  or 
request  of  the  defendants,  are  entitled  to  such  costs  and 
disbursements  as  may  be  necessarily  incurred  by  them  for 
the  protection  of  their  interest  in  the  matter.  Such  costs 
will  not  be  charged  against  the  common  fund,  or  the 
lands  that  are  subject  to  the  co-tenancy,  but  will  be 
awarded  against  the  defendant,  and  stand  against  him  as 
a  judgment  in  favor  of  such  necessary  party.^  The  party 
cannot  be  charged  with  costs  because  he  unreasonably 
refused  to  make  partition  by  deed,  although  partition  is  a 
matter  of  right,  to  which  any  co-tenant  in  the  land  is 
entitled;  but  voluntary  partition  is  something  not  consid- 

1  7  N.  Y.  Legal   Obs.  127 ;    i    Sandf.  Ch.  40  ;   7  Paige,  204  ;  20 
Barb.  541  ;  3  Code  R.  9. 

2  Paine  v.  Ward,  4  Pick.  246.     See  19  Pick.  539. 

3  Hamersley  v.  Hamersley,  7  N.  Y.  Legal  Obs.  127,     See  Wil- 
liamson V.  Williamson,  i  Mete.  303. 


COSTS.  343 

ered  in  the  statutes  regulating  the  action,  and  there  is 
nothing  in  the  law  relating  to  or  allowing  a  voluntary- 
partition  that  charges  to  any  co-tenant  the  costs  and 
disbursements  of  a  partition  suit,  commenced  after  the 
refusal,  which  perhaps  may  be  an  unreasonable  refusal  of 
one  co-tenant  to  join  with  the  others  in  a  voluntary 
partition  of  the  premises.^ 

If  in  proceedings  for  partition  between  the  heirs  of  a 
common  ancestor,  some  of  the  parties  do  not  appear  in 
the  action,  and  no  part  of  the  land,  or  of  the  proceeds  of 
the  sale  of  the  land,  is  allotted  to  such  parties,  by  reason 
of  advancements  having  been  made  to  them  in  the  life- 
time of  the  common  ancestor,  no  costs  can  be  charged  to 
such  parties,  as  they  are  not  liable  therefor.'*  In  case  a 
bill  in  equity  should  be  filed  for  the  purpose  of  setting 
aside  a  deed  in  partition,  on  the  ground  that  fraud  was 
had  in  making  the  partition,  or  in  making  the  deed,  and 
the  bill  asked  to  have  a  new  partition,  not  only  of  the 
lands  previously  allotted  or  sold,  but  also  of  other  lands, 
which  were  not  included  in  the  former  writ,  the  plaintiff 
failing  to  establish  the  charge  of  fraud,  the  court  held 
that  the  bill  should  be  retained  and  not  dismissed,  for  the 
purpose  of  having  a  partition  of  the  land,  not  embraced 
in  the  deed  sought  to  be  set  aside,  and  that  the  plaintiff 
was  liable  for  all  of  the  costs  of  the  defendant  up  to  the 
time  of  the  decree  sending  the  case  to  the  master." 

In  a  final  judgment  confirming  the  sale  of  the  prem- 
ises, the  costs  of  each  party  to  the  action, and  the  expense 
of  the  sale,  including  the  fees  of  the  officer  making  such 
sale,  and  each  party's  costs  must  be  paid  to  him  or  to  his 

*  McGowan  v.  Morrow,  3  Code  R.  9. 
5  Tanner  v.  Niles.  i  I5arb.  560,  a7ite. 
«  Masterson  v.  Finnigan,  2  R.  I.  316. 


344  THE    LAW    OF    PARTITION. 

attorney.  The  rule  in  New  York  State  is  that  such  costs 
shall  be  paid  to  the  attorney  of  the  party  to  whom  the 
costs  are  awarded.  The  court  may,  in  its  discretion,  and 
when  proper,  direct  that  the  costs  of  any  trial,  reference, 
or  other  proceeding  in  the  action,  be  paid  out  of  the  share 
of  the  proceeds  of  any  one  of  the  parties  concerned  ;  and 
the  court  may  decree  that  a  judgment  be  entered  against 
such  party  for  the  costs  of  such  trial,  reference  or  pro- 
ceeding. This  power  is  placed  in  the  court,  so  that  the 
court  may  protect  innocent  parties  from  any  improper 
act  done  by  one  or  more  of  the  parties  to  the  action.  In 
proceedings  as  important  as  actions  of  partition,  and 
where  so  many  interests  are  involved,  ofttimes,  one  or 
more  of  the  parties  may,  by  their  own  act,  bring  about 
unnecessary  and  unwarranted  proceedings  in  court,  which 
are  of  no  aid  in  carrying  out  that  which  is  justice  to  all 
concerned  ;  and  if  the  costs  were  taxed  as  costs  gener- 
ally are  in  partition  cases,  such  unnecessary  and  unwar- 
ranted proceedings  would  be  something  of  a  punishment 
upon  the  innocent  parties,  and  ought  not  to  be  taxed 
upon  it.  Therefore,  this  power  is  given  to  the  court, 
whereby  it  may  protect  those  who  are  not  guilty  of  such 
unwarranted  and  unjust  proceedings  against  the  act  of 
those  who  are  guilty.  In  case  any  part  of  the  proceeds 
is  to  be  paid  to,  or  invested  for  the  benefit  of  any  per- 
son, as  prescribed  by  the  rules  and  regulations  pertaining 
to  partition,  the  amount  of  such  payment  or  investment 
must  be  arrived  at  and  determined  by  the  amount  of  the 
residue  of  the  entire  proceeds  remaining  when  the  costs 
and  expenses  have  been  deducted  that  was  chargeable 
against  such  funds.* 

*  Where  final  judgment,  confirming  a  sale,  is  rendered,  the 
costs  of  each  party  to  the  action  and  the  expenses  of   the  sale. 


COSTS. 


345 


The  g-eneral  phraseology  and  provisions  for  the  parti- 
tion of  lands  contemplate  an  assignment  to  each  owner 
of  his  respective  portion,  when  such  portion  is  capable  of 
being  ascertained.  If  the  defendants  in  such  proceedings 
wish  to  retain  their  proportions  of  the  estate  undivided, 
partition  may  be  made  accordingly,  and  their  consent  to 
such  partition  will  be  construed  into  an  assent  that  a  joint 
judgment  be  rendered  against  them  for  the  costs  of  the 
action.  When  such  a  partition  is  made,  it  would  be  advis- 
able to  obtain  from  the  court  its  direction  pertaining 
thereto.'  Where  the  parties  on  each  side  of  an  action 
prove  to  be  successful,  and  each  becomes  entitled  to 
recover  costs  separately,  the  court  has  power,  under  sec- 
tion 3253  of  the  New  York  Code  of  Civil  Procedure,  to 
award  additional  allowances  to  each,  provided  the  allow- 
ance to  each  side  does  not  exceed  $2,000,  or  $4,000  in 
the  aggregate. 

The  power  of  the  court  to  award  to  the  guardian  of 
an  infant,  to  be  paid  out  of  the  subject-matter  of  the 
action,  such  a  compensation  as  appears  to  be  reasonable 
for  the  services  he  has  performed,  does  not  depend 
upon    the    provisions  of  the    Code    of    Civil   Procedure, 

including  the  officer's  fees,  must  be  deducted  from  the  proceeds 
of  the  sale,  and  each  party's  costs  must  be  paid  to  his  attorney. 
But  the  court  may,  in  its  discretion,  direct  that  the  costs  and 
expenses  of  any  trial,  reference,  or  other  proceeding  in  the 
action,  be  paid  out  of  the  share  of  any  party  in  the  proceeds,  or 
may  render  judgment  against  any  party  therefor.  Where  a 
proportion  of  the  proceeds  is  to  be  paid  to,  or  invested  for  the 
benefit  of  any  person,  as  prescribed  in  any  provision  of  this  article, 
the  amount  thereof  must  be  determined  by  the  residue  of  the 
entire  proceeds  remaining  after  deducting  the  cost  and  expenses 
chargeable  against  them.     N.  Y.  Code  Civ.  Pro.  g  i  579. 

7  McWhortert/.  Gibson.  2  Wend.  443.     Sec    17  Wend.  540;  22 
Ind.  58  ;  I  Dill.  247  ;  42  Wis.  294. 


346  THE    LAW    OF    PARTITION. 

nor  is  it  to  be  included  in  or  limited  by  the  sum  of 
$2,000  fixed  by  section  3254  of  the  New  York  Code 
of  Civil  Procedure/  The  guardian  ad  litem  of  an 
infant  defendant  can  only  be  allowed  his  taxable 
costs,  against  a  fund  belonging  to  other  parties  in 
the  case,  unless  there  be  something  extraordinary 
and  difficult  about  the  case.  In  very  special  cases, 
the  court  is  authorized  to  allow  something  beyond 
the  taxable  costs  of  the  guardian  ad  litem,  to  be  taxed 
upon  the  fund  belonging  to  the  infant.'  Extra  counsel 
fees  to  the  guardian  ad  litem  of  infants  who  have  only 
contingent  interests  in  the  fund  in  litigation,  cannot  be 
allowed  by  the  court,  to  be  paid  out  of  the  fund  which 
may  eventually  belong  to  other  persons.'"  The  court  has 
the  power,  in  case  the  interest  of  one  co-tenant  should 
remain  unsettled  by  the  decree  of  partition,  to  reserve 
the  question  pertaining  to  the  amount  of  costs  that  such 
co-tenants  shall  pay,  until  the  further  action  by  the 
court  in  reference  to  such  co-tenant's  interest." 

Where,  in  an  action  of  partition,  the  plaintiff,  after 
decree,  agreed  to  buy  the  interest  of  the  defendant,  and 
an  order  was  made  that  he  pay  the  purchase  money 
into  court,  but  the  defendant  died  before  conveyance, 
and  her  solicitors  obtained  a  charging  order  of  their  costs 
in  the  action  under  the  Attorneys  and  Solicitors  Act  of 
England,  of  i860,  section  28,  and  afterwards  a  stop  order. 
Having  been  served    with  proposed  minutes  of  order,  on 

8  Weed  V.  Payne,  31    Hun,  10;    citing  4  Paige,  85,  87  ;    7  Id. 

523.  544- 

9  Union  Ins.  Co.  v.  Van  Rensselaer,  4  Paige,  85.     See  Clarke, 

399 ;  citing  i  Hopk.  277. 

^0  Gott  V.  Cook,  7  Paige,  521.     See   Nodine  v,  Greenfield,  Id. 

544- 

11  Phelps  V.  Green,  3  Johns.  Ch.  302,  ante. 


COSTS.  347 

further  consideration,  they  appeared  by  counsel  and  asked 
for  their  costs  of  obtaining  the  stop  order  and  of  their 
appearance.  The  court  held  that  they  must  bear  their  own 
costs  of  obtaining  the  stop  order  and  of  their  appear- 
ance.'" The  executor  of  the  deceased  plaintiff  in  a  suit, 
who  obtained  the  common  order  of  revivor  and  prosecutes 
that  suit,  may,  if  defeated,  be  adjudged  to  pay  the  costs 
personally."  To  enter  a  judgment  for  costs  against  an 
executor  or  administrator  personally,  there  must  be  a 
direction  to  that  effect  from  the  court."  In  rendering 
costs  against  an  executor  or  administrator,  care  should 
be  used  by  the  court,  and  its  discretion  should  not  be 
exercised  in  an  arbitrary  manner  ;  and,  in  some  cases, 
unless  such  entry  is  specially  authorized  by  statute,  appli- 
cation for  leave  to  enter  judgment  is  necessary." 

A  stipulation  by  the  parties  to  an  action,  that  the 
fees  of  a  stenographer  for  taking  the  testimony  may  be 
taxed  as  costs,  has  the  effect  of  submitting  to  the  court 
the  question  as  to  the  sum  to  be  allowed,  and  waives  the 
right  to  have  the  same  determined  by  a  jury.  Under 
such  a  stipulation  to  tax  stenographer's  fees  as  costs  in 
the  case,  if  the  court,  on  its  own  motion,  refer  the  quest- 
ion as  to  the  sum  to  be  allowed,  the  referee's  findings 
thereon  are  advisory  merely,  and  the  court  has  a  right  to 
confirm  such  findings,  or  to  disregard  them  entirely  and 
enter  a  decree  entirely  independent  of  the  findings  and 
upon  the  evidence  returned  by  the  referee.     Under  such 

12  Miidmay^'.  Ouicke,  33  Moak  Eng.  156. 

!•'*  Boynton  v.  Boynton,  26  Moak  Eng.  81.  Sec  3  Id.  74S  ;  \i 
Id.  666  ;  N.  Y.  Code  Civ.  Pro.  I  3246. 

1*  Woodruff  -v.  Cook,  14  How.  Pr.  481.     See  12  How.  Pr.  305. 

i""' Hamilton  v.  Homer,  \(i  Miss.  378;  11  Abb.  Pr.  258;  19 
How.  Pr.  469;  27  N.  Y.  225  ;  12  N.  Y.  Leg.  Obs.  262  ;  11  Barb.  242; 
15  Hun,  308;  51  Ind.  159;   16  Grant,  115:1  Eng.  Ch.  D.  588. 


34^  THE    LAW    OF    PARTITION. 

a  State  of  facts,  the  appellate  court  may  set  aside  the 
decree  or  findings  of  the  trial  court,  with  directions  to 
enter  an  order  in  accordance  with  the  findings  of  the 
referee.'^  When  all  the  evidence  taken  by  the  referee 
and  upon  which  he  makes  his  findings  is  reported  by  him 
to  the  court,  the  court  may  modify  or  set  aside  the  report 
and  make  such  findings  as  are  warranted  by  the  evidence 
and  pronounce  judgment  thereon/'  It  has  been  the 
practice  in  English  courts  of  common  law  to  allow  an 
arbitrator  to  refuse  the  publication  of  his  award,  until  his 
charges  are  paid."  The  Supreme  Court  of  New  York 
have  extended  this  rule  to  referees,  and,  as  late  as  i8So,  it 
virtually  decided  that  a  referee  was  not  bound  to  part 
with  his  report  without  the  payment  of  his  legal  fees." 
Where  the  referee  has  his  report  ready  within  the  statu- 
tory time  and  offers  to  deliver  it  on  payment  of  his  legal 
fees,  such  offer  should  be  deemed  a  sufficient  delivery  to 
prevent  the  forfeiture  under  section  1019  above  referred 
to.""     Costs  in  equity  are  in  the  discretion  of  the  court.^' 

The  allowance  for  each  additional  defendant,  as  pre- 
scribed by  the  Code,  means  necessary  defendants,  or 
persons  necessarily  made  parties  to  the  action.  An 
objection  may  be  taken,  upon  the  adjustment  of  the  costs, 
that  some  of  the  persons  named,  and  for  which  an  allow- 

16  Barnes  v.  Somerville,  4  West.  R.  302.     See  i  West.  R.  737. 

17  Ely  V.  Ownby,  59  Mo.  437  ;  Smith  v.  Paris,  70  Id.  615.  See 
73  Id.  187. 

18  Mussleburg  v.  Duncan,  9  Bing.  605.  See  Ott  v.  Schroeppel, 
3  Barb.  56,  62. 

19  Geib  V.  Topping,  83  N.  Y.  46  ;  N.  Y.  Code  Civ.  Pro.  §  1019  ; 
56  How.  Pr.  218  ;  5  Johns.  252  ;  9  Id.  114. 

20  Waters  v.  Shepherd,  14  Hun,  223  ;  83  N.  Y.  48  ;  6  Dowl.  P. 
C.  556;  I  Wiis,  130. 

21  Reed  v.  Rankin,  2  West.  R.  879  ;  Carpenter  v.  Davis,  72 
111.  14. 


COSTS.  34^ 

ance  is  asked,  are  not  necessary  defendants.=^  The  volun- 
tary appearance  of  several  defendants  entitles  the  plaint- 
iff to  the  same  costs  as  if  such  defendants  had  been  regu- 
larly served  with  the  summons."  Where  there  are  several 
liens,  and  one  or  more  of  the  owners  contest  the  liens,  the 
lienholders,  who  are  successful  in  the  establishment  of 
their  claim,  should  have  costs,  as  against  the  owner 
or  owners  contesting  the  same.=*  Costs  should  always  be 
adjusted  according  to  the  law  in  force  at  the  time  of  the 
taxation.^^  Where  a  default  has  been  taken  before  a 
change  in  the  rate  of  costs,  and  costs  are  taxed  after  the 
change,  the  former  law  governs."® 

The  New  York  statutes  permit  an  additional  allow- 
ance to  be  granted  in  partition  cases,  upon  a  sum, 
not  exceeding  $200,  of  ten  per  cent.  ;  upon  an  addi- 
tional sum,  not  exceeding  $400,  of  five  percent.;  upon  the 
further  additional  sum,  not  exceeding  $1,000,  of  two  and 
one-half  per  cent.  In  case  the  action  should  be  settled  be- 
fore final  judgment,the  plaintiff  is  entitled  to  a  percentage 
upon  the  amount  paid  or  secured  upon  the  settlement,  at 
one-half  of  the  above  rates."  The  court  has  no  discre- 
tion to  make  any  allowance  other  than  that  prescribed, 
and  the  allowance  can  be  to  the  plaintiff  only.''  If  the 
case  is  difficult  or  extraordinary,  the  court  may  make  an 

2'-'  Case 7/.  Price,  17  How.  Pr.  348  ;  9  Abb.  Pr.   in. 

23  SchwingerT/.  Hicks,  i   Sheldon,  377. 

24  Morgan  v.  Stevens,  6  Abb.  N.  C.  356. 

25  Morrow  v.  Wcstervelt,  14  How.  Pr.  279  ;  5  Abb.  Pr.  14. 

2«  Huber  v.  Lockwood,  15  How.  Pr.  74  ;  14  Id.  79,  357;  18  Id. 
532:28  Id.  155,  See  3  Den.  173;  I  How.  Pr.  232 ;  11  N.  Y.  Leg. 
Obs.  119;  5  Abb.  Pr.  14;  15  How.  Pr.  74;  5  Abb.  Pr.  219;  18  How. 
Pr-  385.  532  ;  15  Id.  430;  3  Robinson,  629. 

27  N.  Y.  Code  Civ.  Pro.  ?  3252. 

28  Williams  v.  Hernon,  13  Abb.  Pr.  297.  See  14  Abb.  Pr. 
161  ;  37  N.  Y.  380. 


350  THE    LAW    OF    PARTITION. 

allowance  greater  than  the  percentage  set  forth  in  section 
3252.^^  The  allowance  can  only  be  made  to  those  who  are 
entitled  to  the  ordinary  costs.'"  The  right  of  the  allow- 
ance accrues  at  the  time  of  the  verdict,  though  its 
amount  will  not  be  fixed  till  later."  An  extra  allow- 
ance cannot  be  granted  more  than  once.*"  Where  an 
extra  allowance  is  made  in  a  decree  for  partition  and  sale, 
a  further  extra  allowance,  on  making  a  decree  confirming 
the  sale  and  directing  the  distribution  of  the  proceeds, 
cannot  be  allowed.^' 

The  court  may,  in  its  discretion,  in  an  action  for  the 
partition  of  real  property,  make  an  extra  allowance, 
where  the  action  is  difficult  and  extraordinary,  or  where 
a  defense  has  been  interposed,  not  exceeding  five  per 
cent,  upon  the  sum  recovered,  or  claimed,  or  the  value  of 
the  subject  matter  involved.^*  Additional  allowances  may 
be  made  in  proper  cases,  whether  the  action  is  legal  or 
equitable  ;  and,  as  a  rule,  should  be  awarded  only  to  the 
successful  party.'^  In  cases  where  default  has  been  made, 
so  that  the  plaintiff  may  take  judgment,  the  additional 
allowance  will  not  be  awarded,^''  though  some  cases  have 
held  to  a  different  rule/^     In  an  action  by  one  joint  owner 


29  Hunt  V.  Chapman,  62  N.  Y.  333  ;  49  How.  Pr.  377. 

30  Devlin  v.  Mayor,  15  Abb.   N.  C.  31. 

31  Cook  V.  N.  Y.  Float.  Dry  Dock  Co.,  i  Hilt.  557. 

32  McDonald  v.  Mallory,  9  N.  Y.  Week.  Dig.  285;  Union 
Trust  Co.  V.  Whiton,  17  Hun,  593. 

33  72  N.  Y.  603;  II    Hun,  147. 
3-1  N.  Y.  Code  Civ.  Pro.  §  3233. 

35  Davis  V.  Glean,  14  How.  Pr.  310;  70  N.  Y.  480;  3  Abb.  N.  C. 
36 ;  10  Hun,  289 ;  4  Abb.  N.  C.  317  ;  7  Hun,  81;  70  N.  Y.  140;  7 
N.  Y.  Week.  Dig.  473  ,  1 1  Hun,  192  ;  53  How.  Pr.  86 ;  52  Id.  230, 

36  AstorT^.  Palaohe,  49  How.  Pr.  231. 

37  Coates  2/.  Goddard,  7  Abb.  Pr.  339;  16  How.  364.  See  7 
Abb.  Pr.  340;  56  N.  Y.  659. 


COSTS. 


oj 


of  a  vessel  against  his  co-owners  for  an  accounting,  the 
court  may,  in  its  discretion,  grant  an  extra  allowance, 
although,  after  the  overruling  to  a  demurrer,  no  answer  is 
filed.'*  Additional  allowances  are  proper  in  actions  per- 
taining to  real  estate/^  The  application  should  be  made 
before  the  entry  of  judgment  ;"*  and  it  can  be  only 
allowed  or  awarded  by  the  court  before  which  the  trial  is 
had."  The  motion  for  the  additional  allowance  may  be 
made  at  special  term  for  the  hearing  of  motion.''  If  the 
trial  has  been  had  before  a  referee,  the  application  must 
be  made  to  the  court  for  the  allowance,  upon  notice  to 
the  adverse  party  ;  and  the  motion  is  subject  to  the  same 
rules,  with  respect  to  the  time  and  place  at  which  it 
should  be  made,  as  any  other  motion.  The  court  should 
be  furnished  with  an  affidavit  of  facts  sufficient  to  enable 
it  to  form  an  opinion  on  the  subject.  The  certificate  of 
the  referee  alone  is  not  sufficient,  although  that  certificate 
may  be  proper  among  the  papers  to  show  what  the  facts 
are.""  Where  a  mistake  has  been  made,  and  the  amount 
of  additional  allowance  awarded  is  slightly  in  excess  of 
the  sum  allowed  by  the  Code,  the  remedy  is  by  motion  to 
correct  the  judgment,  and  not  by  an  appeal.'' 

When  the  recovery  is  set  aside,  the  additional  allow- 


38  Darling?/.  Brewster,  55  N.  Y.  667, 

39  Fisher  7/.  Hepburn.  48  N.  Y.  41. 

40  Martin  77.  McCormlck,  3  Sandf.  755-     See  29  How.  97  ;  34  N. 

Y.  355. 

41  Van  Rensselaer  v.  Kid,  5  How  Pr   242;  Osborn  v.  Betts,  8 

How.  Pr.  31. 

42  Mills  V.  Watson,  45  N.  Y.  Super.  591. 

43  Howe  V.  Muir.  4  How.  Pr.  252  ;  (Jsburn  v.  Betts,  8  How. 
Pr.  31,  ante  ;  16  How.  Pr.  271.  See  10  How.  Pr.  93  ;  45  N.  Y. 
Super.  423. 

44  Kraushaar  v.  Meyer,  72  N.  Y.  602. 


352  THE    LAW    OF    PARTITION. 

ance  falls,  as  it  is  set  aside  as  a  part  of  the  judgment." 
When  one  judge,  before  whom  trial  has  been  had,  shall 
have  made  an  order  awarding  an  extra  allowance,  that 
order  is  not  reviewable  on  motion  before  another  judge."* 
The  order  for  the  extra  allowance  is  appealable  to  the 
general  term  ;■"  but  the  Court  of  Appeals  cannot  review 
that  which  is  within  the  discretion  of  the  court  below.^' 
The  determination  of  the  question  as  to  whether  an 
action  should  be  regarded  as  difficult  and  extraordinary, 
involves  so  many  considerations  which  are  addressed  to 
the  discretion  of  the  judge,  that  the  appellate  court 
rarely  interferes."'  ^ 

The  additional  allowance  under  the  New  York  Code  is 
limited,  and  cannot  exceed,  in  the  aggregate,  the  sum  of 

$2, OCX).'" 

The  disbursements  of  the  prevailing  party  entitled  to 
costs  are  included  in  his  bill.  Disbursements  include  the 
legal  fees  of  witnesses  and  referees  and  other  officers;  the 
reasonable  compensation  of  commissioners  taking  depo- 
sitions ;  the  legal  fees  for  publication,  where  publication 
is  directed,  pursuant  to  law ;  the  legal  fees  paid  for  certi- 

45  Hicks  V.  Waltermire,  7  How.  Pr.  370.  See  4  Abb.  Pr.  245; 
II  How.  Pr.  434;  4  Duer,  613. 

46  Dresser  7/.  Jennings,  3  Abb.  Pr.  240. 

47  Clarke  ?7.  City  of  Rochester,  29  How.  Pr,  97.  See  34  N.  Y. 
365;  3  Hun,  57. 

48  People  V.  N.  Y.  C.  R,  R.  Co.,  29  N.  Y.  418. 

49  Morrison  v.  Agate,  9  N.  Y.  Week.  Dig.  286. 

i>The  following  cases,  decided  under  \  section  3253,  will  be  of 
interest:  47  Super.  364  ;  26  Hun,  344  ;  60  How.  Pr.  237  ;  29  Hun, 
248;  31  Id.  384,  397  ;  39  Id.  566;  65  How.  Pr.  288;  61  Id.  161,  305  ; 
66  Id.  242;  5  Brown  Civ.  Pro.  164;  8  Civ.  Pro.  212,  431  ;  11  Id.  54; 
3  How.  N.  S.  22  ;  99  N.  Y.  270. 

so  N.  Y.  Code  Civ.  Pro.  §  3254;  26  Hun,  87  ;  31  Hun,  10;  13 
Abb.  N.  C,  200 ;  4  Brown  C.  P.  305  ;  18  N.  Y.  Week.  Dig.  20. 


COSTS. 


•7  r  T 


fied  copies  of  necessary  papers,  recorded  or  filed  in  any 
public  office,  which  papers  are  necessary  to  the  party 
causing  them  to  be  brought  into  court  ;  the  reasonable 
expenses  of  printing  the  papers  for  a  hearing,  when 
required  to  do  so  by  a  rule  of  the  court  ;  the  proper 
charges  as  allowed  by  law  for  the  service  of  papers, 
together  with  the  prospective  charges  of  entering  and 
docketing  the  judgment  ;  and  the  sheriff's  fees  for  receiv- 
ing and  returning  one  execution,  including  a  search  for 
property,  together  with  such  other  necessary  and  rea- 
sonable expenses,  as  are  taxable,  according  to  the  course, 
rules  and  practice  of  the  court,  or  that  are  allowed  by 
express  provision  of  law.''  It  may  be  stated,  as  a  gen- 
eral rule,  that  disbursements  follow  costs  ;  and  where  a 
party  is  not  allowed  his  costs  in  the  action,  he  cannot 
recover  his  disbursements/'  Witness  fees  should  be 
taxed,  as  witnesses  are  entitled  to  the  fees  allowed  to 
them  by  law." 

Where  opposition  is  made,  on  taxation,  to  the  amount 
of  the  referee's  fees,  his  charges  should  be  supported  by 
affidavit.  The  general  affidavit  of  disbursements  in  such 
cases  is  not  sufficient  ;  neither  is  the  referee's  certificate 
as  to  the  number  of  days  spent  by  him  in  examining  the 
case  after  its  submission.  The  affidavit  should  show  the 
number  of  days  spent  by  the  referee  before  the  submission 
of  the  case  to  him,  and  the  number  of  days  spent  after  the 
submission  of  the    case  in    his  examination,    and  tiiat  the 

■''1  N.  Y.  Code  Civ.  Pro.  ^  3256;  1 1  Abb.  N.  C.  217  ;  2  Civ.  Pro. 
390  ;  3  Id.  80  ;  9  Id.  421;  10  Id.  160;  10  Daly,  420;  24  Hun,  173  ;  31 
Id.  609. 

^'■^  Rust  7A  Hansett,  2  Law  Bui.  6 ;  Wheeler  v.  Wcstgatc.  4 
How.  Pr.  269  ;  Peet  v.  Warth,  1  Bosw.  653. 

•'•^  Wheeler  f.  Lozee,  12  How.  Pr.    446.     See  18  How.  Pr.  16H  ; 
25  How.  Pr.  340;  5  Abb.  Pr.  227. 
23 


354  THE    LAW    OF    PARTITION. 

number  of  days  so  spent  by  him  was  necessary  for  the 
proper  examination,  and  his  decision.  "  The  usual  ex- 
pense of  printing, — that  is,  necessary  printing  matter  in 
the  case, — may  be  taxed  without  regard  to  the  price 
actually  paid  therefor.  ^® 

Stenographer's  fees  are  taxable  as  disbursements.  ^* 
This  is  true,  where  the  rules  of  the  court,  in  the  district 
in  which  the  case  is  tried,  allow  the  taxation  of  steno- 
grapher's fees  ;  and  the  Code  provides  the  amount  of 
compensation  that  shall  be  paid  to  the  stenographer.  " 
The  expense  of  a  copy  of  the  stenographer's  minutes, 
taken  upon  a  former  trial  and  obtained  for  use  on  a  new 
trial,  is  not  taxable,  and  cannot  form  a  part  of  the  costs.  ^' 

If  the  defendants,  or  a  portion  of  the  defendants,  have 
no  interest  is  the  land,  the  plaintiff  is  entitled  to  his 
costs,  though  he  may  recover  less  than  he  demanded  in 
his  prayer  for  relief.  "  Where  a  defendant  contests  the 
plaintiff's  right  to  partition  down  to  the  time  of  the  entry 
of  the  interlocutory  judgment,  and  the  interlocutory 
judgment  is  finally  entered  in  plaintiff's  favor,  the  defend- 
ant then  abandoning  the  contest,  or  contesting  the 
plaintiff's  right  no  longer,  he  will  be  liable  to  costs  to  the 
time  of  the  withdrawing  of  his  opposition.  "^^  If  the  issue 
determined  be  an  issue  of  law  only,  costs  may  be  allowed.  " 
It  is  not  necessary   to  show,    in  the  judgment  for  costs, 

^  Brown  v.  Windmuller,  36  N.  Y.  Super.  75  ;  14  Abb.  Pr.  N. 
S.  359  ;  53  N.  Y.  642.     See  N.  Y.  Code  Civ.  Pro.  §  3296. 

55  54  How.  Pr.  62.     See  56  Id.  89 ;  45  N.  Y.  Super.  587. 

56  Shultz  V.  Whitney,  9  Abb.  Pr.  71  ;  17  How.  Pr.  471. 

57  N.  Y.  Code  Civ.  Pro.  §  331 1. 

58  Flood  V.  Moore,  2  Abb.  N.  C.  91. 

59  Thornton  v.  York  Bank,  45  Me.  158. 

60  Fiske  v.  Keene,  46.  Me.  225. 

61  Symonds  v.  Kimball,  3  Mass.  299;  Swett2^.  Bussey,  12  Mass. 
503. 


COSTS.  355 

that  the  petitioner  or  plaintiff  has  paid  the  costs  of  the 
action.  "  In  case  a  division  is  made  of  only  a  portion  of 
land,  and  the  remainder,  not  being  susceptible  of  division, 
is  sold,  the  costs  of  the  proceeding,  including  the  sale, 
must  be  borne  equally  by  all  the  co-tenants.  "  The  widow 
entitled  to  dower,  and  necessarily  made  a  party  to  the 
action,  is  liable  for  her  share  of  the  costs,  and  judgment 
may  be  taken  accordingly.  "  When  partition  is  decreed, 
the  costs  are  to  be  taxed  as  between  the  complainant 
and  the  defendants  who  have  appeared  as  between  party 
and  party,  and  the  aggregate  amount  of  the  several  bills 
of  costs,  as  taxed,  is  to  be  apportioned  between  the  com- 
plainant and  the  other  parties,  according  to  their  respec- 
tive rights  and  interests  in  the  premises,  which  aggregate 
amount  is  apportioned  as  ascertained  and  settled  by  the 
decree,  which  decree  should  direct  that  the  several  par-- 
ties  entitled  to  such  costs  should  have  execution  there- 
for, according  to  the  rules  and  practice  of  the  caurt  in- 
such  cases.^^ 

The  defendant,  in  an  action  brought  in  an  court  of  rec- 
ord in  the  State  of  New  York,  may  require  security  for 
costs  to  be  given  in  case  the  plaintiff  is  a  non-resident,  or 
a  foreign  corporation,  or  a  person  imprisoned  under  exe- 
cution for  a  crime,  or  an  .official  assignee  of  a  person  so. 
imprisoned,  or  an  official  assignee,  or  official  trustee  of 
a  debtor,  or  an  assignee  in  bankruptcy  where  the  action 
is  brought  upon  a   cause  of  action    arising   before   the: 


62  Sprott  V.  Reid,  3  Iowa,  489. 

6^  Cooper  V.  Garesche,  21    Mass.  151.      See  i    McCord,   162  ; 
17  Md.  231. 

•'^TannerT/.  Niles,  i   Barb.  ^60,  ante. 
65  Tibbits  V.  Tibbits,  7  Paige,  204,  ante. 


356  THE    LAW    OF    PARTITION. 

assignment,  the  appointment  of  the  trustee,  or  the  adjudi- 
cation in  bankruptcy.  The  defendant  may  also  require 
that  a  defendant,  whose  guardian  ad  litem  has  not 
given  the  security  provided  by  law,  shall  give  such 
security.  ** 

The  costs  should  be  paid  as  soon  as  they  are  ascer- 
tained, and  no  demand  is  necessary  before  proceedings 
may  be  had  for  their  collection.  An  execution  can  be 
issued  at  once,  and  collection  will  be  made  by  virtue  of 
the  execution.  "  In  case  the  decree  of  the  court  direct 
that  the  land  sought  to  be  partitioned  should  be  sold, 
and  that  the  costs  of  the  action  should  be  paid  out  of  the 
proceeds  of  such  sale,  then  the  payment  of  the  costs 
would  not  be  expected  as  soon  as  the  judgment  therefor 
was  entered,  but  would  be  expected  and  should  be  paid 
as  soon  as  the  sale  is  sufficiently  complete  for  that  pur- 
pose. *^  The  court  may  enforce  the  payment  of  costs, 
and  may  direct  an  attachment  for  that  purpose.  The 
costs  of  an  adjournment  of  the  trial  may  be  charged  and 
decreed  against  one  making  the  application  for  the  ad- 
journment ;  and  the  court,  or  referee  to  whom  such 
application  is  made,  may  make  such  direction,  and  that 
the  costs  should  be  paid  to  the  adverse  party,  usually  of 
a  sum  not  exceeding  $10,  together  with  the  necessary 
fees  of  the  witnesses  of  the  adverse  party  ;  that  is, 
such  fees  would  be  taxable  as  disbursements  that    had 


66  N.  Y.  Code  Civ.  Pro.  §  3268  ;  2  Abb.  N.  C.  432 ;  4  Bosw. 
663;  3  Johns.  Ch.  520;  I  Duer,  705  ;  12  N.  Y.  Leg.  Obs.  28  .  8 
Abb.  Pr.  340;  8  Hun,  520;  7  Daly,  258;  22  How.  Pr.  444;  i  Law 
Bull.  29  ;  17  N.Y.  Week.  Dig.  207;  63  How.  Pr.  377  ;  53  Super.  530; 
6  Civ.  Pro.  371  ;  7  Id.  200;  8  Id.  138;  i  How.  Pr.  N.  S.  146. 

67  Jackson  v.  Pell,  19  Johns.  270. 

68  Fulton  V.  Brunk,  18  Wend.  509. 


COSTS.  357 

been  made  in  good  faith  by  the  party  opposed  to 
the  adjournment,  and  the  payment  thereof  may  be 
required,  as  a  condition  for  the  granting  of  the  ad- 
journment. ^^ 


69  N.  Y.  Code  Civ.  Pro.  §  3255,      See  43  How.   Pr.  375  ; 
Wend.  509;  5  Hill,  516;  19  Johns.  270. 


18 


CHAPTER  XXIV. 


DISTRIBUTION  OF  PROCEEDS. 


After  the  sale  shall  have  been  had  and  confirmed, the 
necessary  deed  or  deeds  of  conveyance  having  been 
given,  and  the  money  paid,  the  next  step  is  to  properly 
distribute  the  money  to  those  to  whom  it  belongs.  The 
costs  and  expenses  of  the  partition  suit,  including  all  the 
disbursements,  shall  be  deducted  from  the  sum  received 
as  proceeds,  or  so  much  thereof  shall  be  deducted  as 
shall  be  chargeable  to  the  proceeds  as  the  costs  and  dis- 
bursements of  the  action,  and  then  the  balance  of  the 
money  must  be  awarded  to  the  parties  whose  rights  and 
interests  have  been  sold,  in  proportion  to  those  rights  and 
interests.  It  may  have  been  found  upon  the  sale  that 
some  one  or  more  of  the  shares  had  at  the  time  of  the 
sale  a  lien  or  liens  resting  upon  it,  in  which  case  the  sum 
that  is  chargeable  upon  such  share  or  shares,  by  reason  of 
such  lien  or  liens,  must  be  deducted  from  the  shares  and 
paid  to  the  persons  or  individuals  holding  such  liens, 
or  else  retained,  subject  to  the  order,  and  under  the 
control  of  the  court,  for  such  equitable  disposition 
thereof  as  the  court  may  deem  right  in  the  premises. 
The  remaining  part  of  such  share  upon  which  was 
attached  the  lien  or  liens,  as  spoken  of  as  aforesaid, 
after  the  payment  of  the  lien  thereon,  must  be  paid  by 
[358J 


DISTRIBUTION    OF    PROCEEDS.  359 

the  officer  making  the  sale,  to  the  party  owning  the 
share,  or  to  his  legal  representatives,  or  else  paid  into 
court  for  the  use  or  benefit  of  such  party.  *  Where  an 
undivided  share  of  real  estate  was  devised  to  a  husband, 
in  trust  for  his  wife  during  her  natural  life,  and  at  her 
death  to  her  heirs  forever,  subject  to  a  life  estate  to  her 
husband  after  the  death  of  the  wife,  the  court  held,  on  a 
partition,  that  the  proceeds  in  such  case  must  be  brought 
into  court.  *  In  case  the  lands  belong  to  the  wife,  who  is 
an  infant,  and  are  sold  under  a  decree  in  partition,  the 
husband  is  not  entitled  to  the  proceeds,  but  the  court 
will  secure  the  fund  for  the  use  of  the  wife,  until  she  be- 
comes of  age  and  consents  to  receive  the  same.  ^ 

The  New  York  Code  of  Civil  Procedure  by  sections 
1534,  1535  and  1536  makes  provision  for  the  protection  of 
the  rights  of  an  infant  in  the  property  sought  to  be  parti- 
tioned or  to  be  sold.  In  case  the  property  is  sold,  and 
one  or  more  of  the  co-tenants  are  infants,  the  share  and 
portion  of  such  infants  in  the  proceeds  of  the  sale  will 
remain  under  the  protection  of  the  court  at  the  time  of 
and  after  the  distribution  of  such  proceeds  ;  and  the 
court  will  make  its  direction  as  to  how  the  share  of  the 
infant  shall  be  invested,  and  shall  oversee  and  direct  all 

The  proceeds  of  a  sale,  after  deducting  therefrom  the  costs 
and  expenses  chargeable  against  them,  must  be  awarded  to  the 
parties  whose  rights  and  interests  have  been  sold,  in  proportion 
thereto.  The  sum  chargeable  upon  any  share,  to  satisfy  a  lien 
thereon,  must  be  paid  to  the  creditor,  or  retained,  subject  to  the 
order  of  the  court :  and  the  remainder,  except  as  otherwise  pre- 
scribed in  this  article,  must  be  paid,  by  the  officer  making  the 
sale,  to  the  parly  owning  the  share,  or  his  legal  representatives, 
or  into  court  for  his  use.      N.  Y.  Code  Civ.  Pro.  ^  1580. 

1  Noble  V.  Cromwell,  26  Barb.  475.     See  6  Abb.  Pr.  59  ;  3  Abb. 
Ct.  App.  Dec.  382. 

2  Sears  v.  Hyer,  i  Paige,  484. 


360  THE    LAW    OF    PARTITION. 

that  may  be  done  pertaining  to  the  portion  of  the  pro- 
ceeds belonging  to  those  who  are  in  their  minority.  *  At 
common  law,  the  courts  will  not  allow  an  infant,  either 
separately  or  jointly  with  adult  co-tenants,  to  mantain 
an  action  in  partition.  The  first  statutes  of  partition  en- 
acted by  the  State  government  allow  infants  to  join  with 
one  or  more  adult  co-tenants  in  common  in  a  suit  for 
partition.  *  Afterwards,  the  New  York  Revised  Statutes 
in  the  form  in  which  we  find  them  at  the  time  of  the 
enactment  of  the  present  Code,  became  the  law,  and  by 
those  statutes  one  or  more  co-tenants  in  common  or  joint 
tenants  might  bring  an  action  of  partition,  providing  they 
were  of  full  age ;  but  in  the  present  Code  the  words  "  full 
age  "  seem  to  have  been  left  out  of  the  enactment,  leav- 
ing to  infants  the  right  to  bring  an  action  of  partition, 
providing  it  is  proper  for  them  to  do  so  and  the  court 
can  see  the  wisdom  of  such  action.  To  do  this,  it  is 
necessary  for  the  infant  to  have  proper  authority  for  so 
doing,  as  provided  by  section  1534  of  the  New  York  Code 
and  referred  to  in  a  previous  chapter  in  this  work.  In- 
fancy being  a  disability  so  far  as  the  right  of  action  is 
concerned,  when  the  action  is  allowed  by  the  proper 
court  having  authority  to  do  so,  it  becomes  the  duty  of 
the  court  in  which  the  action  is  brought  to  protect  the 
interest  of  the  infant  in  all  things  pertaining  to  his  action 
from  its  commencement  until  the  proper  and  safe  disposi- 
tion of  that  portion  of  the  proceeds  has  been  made  be- 
longing to  the  infant  ;  and  in  case  an  infant  is  a  defendant, 
it  is  the  bounden  duty  of  the  court  to  throw  its  protection 
around  that  portion  of  the   proceeds    belonging  to  such 

3  Postley  V.  Kain,  4   Sandf.  Ch.   542.   See  i  Sandf.   Ch.   201 ; 
2  Hoffm.  Ch.  161  ;  i  R.  L.  507;  i  Paige,  483. 

*  See  act  of  March  15, 1785  ;  i  Greenl.  Laws  of  New  York,  165. 


DISTRIBUTION    OF    PROCEEDS.  36 1 

infant  defendant,  and  to  see  that  a  proper  disposition  is. 
made  of  it,  so  that,  when  its  owner  arrives  at  full  age, 
and  becomes  entitled  to  it,  he  then  can  receive  that 
which  belongs  to  him. 

The  share  of  the  proceeds  of  a  sale  in  partition  belong- 
ing to  a  wife  will  not  be  paid  to  the  husband,  unless  a 
master  certifies  that  on  a  private  examination  of  the  wife,  he 
fully  explained  to  her  the  nature  and  extent  of  her  rights, 
and  that  she  voluntarily  consented  to  relinquish  them 
in  favor  of  her  husband,  either  absolutely  or  on  the  terms 
and  conditions  specified  in  the  master's  certificate.  Such 
consent,  upon  the  part  of  the  wife,  should  be  given  before 
some  officer  entitled  to  take  acknowledgments.  The 
rule  laid  down  is  that  the  acknowledgment  and  consent 
of  the  wife  should  be  taken  before  one  of  the  masters  or 
judges  of  the  court  in  which  the  action  was  tried  ;  that  he 
by  reason  of  his  knowledge  of  the  facts  was  more  compe- 
tent to  understand  the  nature  and  extent  of  the  wife's 
equitable  right,  and  more  competent  to  explain  such  right 
to  her,  so  that  she  might  fully  understand  what  she  was 
doing  in  relinquishing  to  her  husband  her  right  in  the  pro- 
ceeds of  the  sale.'  In  equity,  it  is  not  deemed  a  necessity 
that  a  partition  should  be  made  so  as  to  give  each  party 
a  share  in  every  part  of  the  property.  Each  party  must  have 
his  or  her  share  in  value,  and  this  is  all  that  is  required.* 
To  make  an  equitable  distribution,  one  of  the  parties,  by 
reason  of  advancements  which  he  may  have  had,  may  be 
compelled  to  pay  into  the  common  fund,  or  pay  money 
on  his  share  to  those  who  have  not  received  as  much  by 
reason  of  not  receiving  advances.     Lapse  of  time  will  not 

5  Hallenbeck  v.  Bradt,  2  Paige,  316 

8  Brookfield  v.  Williams,  i  Green  Ch.  341. 


362  THE   LAW    OF    PARTITION. 

raise  the  presumption  of  partition  of  lands,  so  as  to  bar  the 
claims  of  minors,  unless  there  is  some  evidence  that  there 
had  been  a  division.'  Substantial  improvements  made  by 
one  of  the  defendants,  who  was  in  possession,  and  reason- 
able expenses  paid  by  him  in  defending  the  title,  may  be 
taken  into  account.' 

The  deed  of  a  married  woman  to  a  guardian  of  her 
infant  husband  is  looked  upon  with  jealousy,  and  the  court 
require  a  personal  examination  of  the  wife  to  know  if  it  be 
done  with  coercion.  Equity  will  not  recognize  the  wife's 
transfer  to  her  husband  of  her  share  of  the  proceeds  of  a 
sale  in  partition,  unless  satisfied  by  her  examination  that 
the  deed  is  her  free  and  voluntary  act.  It  is  not  claimed 
that  the  wife  cannot  make  the  transfer,  and  could  not 
under  the  rules  of  the  chancery  courts,  but  that  transfer 
must  be  her  own  individual  and  voluntary  act,  and  the 
court  must  be  satisfied  that  she  was  not  compelled  to 
make  the  transfer  or  that  she  did  make  the  transfer  by 
reason  of  any  fear  which  she  may  have  had  of  her  hus- 
band." Provision  may  be  made  for  the  satisfaction  of  an 
inchoate  right  of  dower  by  paying  into  court  a  gross  sum 
fixed  by  the  court  as  being  the  present  value  of  the  right 
of  dower.  The  sum  so  fixed,  as  being  the  value  of  the 
wife's  inchoate  right  of  dower,  is  her  personal  property. 
Upon  the  wife's  death  it  goes  to  her  husband.^" 

If  the  decree  in  an  action  of  partition  and  sale  of  real 
property  recognizes  and  protects  remainders  therein,  the 
interestsof  the  remaindermen  are  cut  off,  even  if  the  court 
erred  in  the  practice  as  to  the  manner  of  protecting  such 

7  Holt  V.  Robertson,  1  Mullen  Eq.  475. 

8  Hitchcock  7/.  Skinner,  Hoflfm.  Ch.  21. 

3  Ferris  7/.  Brush,  i  Edw.  Ch.  571.     See  i  Clarke,  540. 
10  Bartlett  v.  Janeway,  4  Sandf.  Ch.  396. 


DISTRIBUTION    OF    PROCEEDS  363 

remainders.  Such  error  would  be  only  an  irregularity  and 
would  not  affect  the  validity  of  the  decree.  ^'  The  court 
will  not  make  an  order  for  payment  to  trustees  of  money 
produced  by  a  sale  under  the  Partition  Act,  where  such 
money  has  been  paid  into  court,  and  some  of  the  persons 
interested  are  married  women,  and  not  residents  of  this 
country.  ^'  The  English  courts  have  gone  so  far  as  to 
hold,  where  the  party  to  a  suit  for  partition  consented  be- 
fore her  marriage  to  a  decree  for  the  sale,  but  before  the 
sale  died  intestate,  leaving  her  husband  surviving,  who 
took  out  letters  of  administration  upon  her  estate,  that 
she  had  elected  in  her  life  time  to  have  her  property  con- 
verted, and  that  her  husband  was  entitled  to  her  share 
of  the  proceeds  as  personal  estate.  ^*  When,  in  an  admin- 
istration suit  asking  also  for  partition  of  real  estate,  the 
court  directed  a  sale,  but  before  it  was  effected  one  of  the 
parties  interested  in  the  real  estate  died,  the  court  held 
that  the  law  was  that  the  estate  was  sufficiently  convert- 
ed, and  the  estate  having  been  sold,  the  share  of  the  de- 
ceased beneficiary  passes  to  his  legal  representatives.  " 
The  rule  is  different  in  regard  to  the  sale  of  infants'  real 
estate  in  partition.  The  sale  of  infants'  real  estate  under 
a  decree  in  partition  does  not  work  a  conversion.  '* 

11  Rockwell  V.  Decker,  5  Civ.  Pro.  62,  See  N.  Y.  Code  Civ. 
Pro.  §  §  1569,  1570,  1580;  21  Alb.  Law  J.  435;  70  N.  Y,  138,  517  ;  80 
Id.  321  ;  65  Barb.  583. 

12  Aston  V.  Meredith,  1 3  L.  R.  Eq.  492 ;  26  L.  T.  N.  S.  281. 

13  Fowler  v.  Scott,  25  L.  T.  N.  S.  23 ;  19  W.  R.  972. 

1*  Arnold  z/.  Dixon,  19  L.  R.  Eq.  113;  23  W.  R.  314.  See 
Steed  V.  Preece.  18  L.  R.  Eq.  192 ;  43  L.  R.  Ch.  Div.  687  ;  22  W.  R. 
432. 

15  Foster  v.  Foster,  i  L.  R.  Ch.  Div.  588  ;  45  L.  J.  Ch.  Div.  301 . 
See6  L.  R.  Ch.  Div.  553;  u  Id.  652;  41  L.  T.  N.  S.  670 ;  44  Id. 
334;  5  Id.  585  ;  30  W.  R,  286;  51  L.  J.  Ch.  Div.  480;  10  Jacob's 
Fisher's  Dig.  15758,  15759. 


364  THE    LAW    OF    PARTITION. 

Where  a  party  to  an  action  for  partition,  entitled  to 
receive  a  portion  of  the  proceeds,  is  an  infant,  the  court 
may,  in  its  discretion,  direct  that  the  share  of  such  pro- 
ceeds going  to  such  infant,  shall  be  paid  to  his  general 
guardian,  or  else  direct  that  it  be  invested  in  permanent 
safe  securities,  on  interest,  in  the  name  and  for  the 
benefit  of  the  infant  to  whom  it  belongs.^  The  shares  of 
infant  defendants  in  the  proceeds  of  the  sale  of  premises 
in  a  partition  suit  ought  not  to  be  paid  to  their  guardians 
ad  litem,  but  should  be  brought  into  court,  and  invested 
for  the  benefit  of  such  infants.  The  rule  laid  down  by 
the  chancellor  in  a  case  just  cited  differs  somewhat  from 
the  rule  as  laid  down  by  section  1581  of  the  New  York 
Code,  which  allows  the  court,  in  its  discretion,  to  direct 
that  the  minor's  share  of  the  proceeds  be  paid  to  his 
general  guardian.  The  law  does  not  allow  successive 
disabilities  in  different  persons  taking  the  same  estate  by 
devise  or  descent  from  each  other.'^ 

The  parties  before  the  court  after  the  sale  may  have  a 
variety  of  interests.  It  is  for  the  court,  in  considering  the 
interests  of  those  parties,  to  make  an  equitable  distribu- 
tion of  the  proceeds  pro  rata,  in  accordance  with  the  in- 
terests of  the  parties  that  are  before  the  court.  The 
court  must  then  pass  upon  the  validity  of  the  liens  that 
may  be  attached  to  any  portion  of  the  proceeds,  and 
direct  payment  thereon  in  proportion  to  the  rights  of  the 
lienholder  as  to  the  money  to  which  the  lien  is  attached  ; 

b  Where  a  party,  entitled  to  receive  a  portion  of  the  proceeds, 
is  an  infant,  the  court  may  in  its  discretion,  direct  it  to  be  paid  to 
his  general  guardian,  or  to  be  invested  in  permanent  securities,  at 
interest,  in  the  name  and  fot  the  benefit  of  the  infant.  N.  Y. 
Code  Civ.  Pro.  §  1581. 

16  Doe  V.  Jesson,  6  East,  80 ;   2  Preston  on  Abs.  341  ;  i  Paige, 

483. 


DISTRIBUTION    OF    PROCEEDS.  365 

that  is,  if  the  lien  is  attached  to  the  whole  of  the  pro- 
ceeds, then  it  must  be  paid  from  the  whole  of  the  pro- 
ceeds, providing  there  be  sufficient  to  do  so.  If  the  lien 
is  attached  to  the  share  of  any  co-tenant  in  the  proceeds, 
then  that  share,  or  so  much  thereof  as  may  be  necessary, 
must  be  used  in  the  payment  of  that  lien.  "  The  statutes 
of  the  various  States  whose  courts  have  been  authorized 
to  sell  lands  in  suits  for  partition,  contain  provisions 
designed  to  assist  and  control  the  distribution  of  the  pro- 
ceeds of  the  sale."  "  The  share  of  a  lunatic  co-tenant  is 
entitled  to  the  same  protection  as  an  infant  co-tenant. 
When  married  women  are  parties,  either  as  co-tenants  or 
as  the  wives  of  co-tenants,  the  proceeds  of  the  sale,  in 
which  they  have  an  interest,  are  not,  as  a  general  thing, 
paid  to  their  husbands,  unless  the  wives  shall  have  con- 
sented to  such  payment,  by  some  instrument  in  writing, 
executed  and  acknowledged  in  the  same  manner  as 
instruments  releasing  tlieir  right  of  dower  in  the  premises, 
or  in  the  same  manner  as  instruments  made  and  executed 
and  acknowledged  by  them  for  the  purpose  of  conveying 
their  individual  property,  unless  the  statute  allows  the 
husband  by  giving  security  to  indemnify  the  wives  for 
any  loss  that  may  be  occasioned  by  reason  of  the  moneys 
belonging  to  his  wife,  and  being  her  interest  in  the 
proceeds  of  the  sale  having  been  paid  to  him.  If  the  hus- 
band does  not  give  such  security,  when  allowed  to  do  so 
by  the  statute,  or,  if  the  wife  does  not  consent  to  allow 
the  husband  to  receive  the  money,  if  it  is  an  inchoate 
right  of  dower,  it  may  be  invested  under  the  direction  of 
the  court  for  the  benefit  of  the  wife.  If  the  wife  be  a  co- 
tenant,  the  money  may  be  paid   to  her,  and,  under  the 

17  Freeman  on  Co-tenancy,  ^  549,  p.  726. 


366  THE    LAW    OF    PARTITION. 

present  practice  and  general  view  of  the  law  in  America, 
the  money  should  be  paid  to  her  the  same  as  if  she  were 
a  single  woman,  providing  she  be  of  full  age."  When 
some  of  the  co-tenants  have  made  conveyances  pendente 
lite,  their  grantees,  if  practicable,  will  be  allowed  to  share 
in  the  proceeds  of  the  sale,  and  they  will  share  according 
to  the  priority  in  the  time  of  which  they  received  their 
several  conveyances.  Where  land,  of  which  one  un- 
divided share  is  held  in  fee,  and  the  other  undivided  share 
in  co-tenancy  for  life  and  in  remainder,  is  conveyed  in 
parcels,  by  successive  deeds,  to  different  persons,  the 
latter  conveyance  expressly  referring  to  the  former  and 
being  subject  thereto,  the  court,  on  making  partition 
between  owners  of  the  undivided  interests,  should  give 
effect  to  the  earliest  conveyances  in  preference  to  the 
latter.  The  principle  of  partition  is  the  same  where  a 
sale  is  necessary,  as  where  actual  partition  is  made  ;  and 
the  rights  of  the  parties  in  the  proceeds  of  the  sale  are 
the  same  as  in  the  lands  themselves.  Where  the  equities 
of  the  case  give  some  of  the  parties  an  interest  in  specific 
parcels,  they  are  entitled  to  have  the  actual  value  of  such 
parcels  ascertained  ;  and  a  judgment  directing  that  the 
value  of  the  parcels  assigned  on  account  of  such  equities, 
shall  be  estimated  at  the  same  rate  as  the  other  parcels 
bring  upon  a  sale,  is  an  error,  unless  it  appears  by  the 
record  that  it  did  not  work  injustice.^'  In  South  Carolina, 
the  proceeds  are  treated  as  land,  and  an  exemption  under 
the    homestead    law   may   be   retained   in    that    State. ^'' 

18  See  C.  C.  P.  of  Cal.  773-791  ;  Id.  Colo.  §§  299-300;  Laws  of 
Nev.  l\  1 345-1 372  ;  C.  C.  P.  N.  Y.  §§  1 564-1 580;  Laws  of  Oregon, 
I  Deady.  258-264. 

19  Warfield  v.  Crane,  4  Abb.  Ct.  App.  525. 

20  Norton  v.  Bradham,  21  S.  C.  375. 


DISTRIBUTION    OF    PROCEEDS.  367 

Orders  made  by  the  court  pertaining  to  the  investments 
of  the  funds,  do  not  in  any  way  affect  the  purchasers  of 
the  property,  unless  they  shall  have  had  notice  thereof  ^^ 
In  case  one  is  made  defendant  as  an  unknown  person, 
or  the  name  of  a  defendant  is  unknown,  or  in  case  a 
defendant  shall  be  a  non-resident,  and  the  summons  shall 
have  been  served  upon  him  by  publication,  or  has  been 
served  upon  him  under  the  rules  of  practice,  known  as  a 
service  "without  the  State,"  and  has  not  appeared  in  the 
action,  the  court  is  bound  to  direct  that  the  portion 
belonging  to  such  defendant  be  invested  in  permanent 
securities,  at  interest,  for  the  benefit  of  such  defendant, 
until  the  same  shall  be  claimed  by  him  or  by  his  legal  rep- 
resentatives." The  Revised  Statutes  of  New  York  pro- 
vide, "  Where  any  of  the  parties  whose  interests  have  been 
sold,  are  absent  from  the  State,  without  legal  representa- 
tives in  this  State,  or  are  not  known  or  named  in  the 
proceedings,  the  court  shall  direct  the  shares  of  such 
parties  to  be  invested  in  permanent  securities,  at  interest, 
for  the  benefit  of  such  parties,  until  claimed  by  them  or 
their  legal  representatives.'"'  "Where  the  proceeds  of  a 
sale  belonging  to  any  tenant  in  dower,  or  by  the  curtesy, 
or  for  life,  shall  be  brought  into  court,  as  hereinbefore 
directed,  the  court  shall  direct  the  same  to  be  invested  in 
permanent  securities,  at  interest,  so  that  such  interest 
shall  annually  be  paid  to  the  parties  entitled  to  such 
estates,  during  their  lives  respectively."  "-'  Where  the  pro- 
ceeds, representing  an  undivided  share  or  interest,  are 
invested  pursuant  to  the  order  of  the  court  for  the  benefit 

21  Beery  v.  Irich,  22  Gratt.  614. 

22  See  N.  Y.  Code  Civ.  Pro.  §  1582. 

23  3  N.  Y.  R.  S.  6ed.   594,  §  79- 

24  3  N.  Y.  R.  S.  6  ed.  594,  §  80.    See  16  Barb,  531;  i  R.  L.  510, 
§7. 


368  THE    LAW    OF    PARTITION. 

of  a  tenant  for  life,  or  for  years,  and  for  the  benefit  of  a 
widow,  as  directed  by  the  New  York  Code,  it  is  the  duty 
of  the  court  to  cause  such  investments  to  be  made  in 
permanent  securities,  at  interest,  and  the  interest  as  paid 
from  time  to  time,  as  it  becomes  due,  shall  be  paid  to  the 
person  for  whose  benefit  it  is  invested,  while  his  or  her 
right  or  estate  continues  in  the  fund.*^  In  case  there  shall 
be  a  doubt  arising  in  regard  to  the  ownership  of  the  funds, 
it  is  within  the  discretion  of  the  court  to  compel  the  persons 
receiving  such  moneys  arising  from  the  sale  as  aforesaid, 
to  give  security  to  the  satisfaction  of  the  court,  to  refund 
the  share  of  the  money,  with  interest  thereon,  received 
by  the  person  so  receiving  it,  in  case  it  shall  afterwards 
appear  that  such  party  was  not  entitled  to  the  money  so 
paid  to  him  under  the  decree  of  the  court.='  It  is  within 
the  discretion  of  the  court  whether  it  requires  the  parties 
to  the  action  receiving  the  money,  as  his  or  her  portion 
of  the  proceeds  of  the  sale,  to  give  such  security  or  not; 
but  the  court  may  require  such  security  when  the  justice 
of  the  case  would  indicate  that  it  is  its  duty  to  do  so  for 
the    protection   of  the   funds.®       The    Revised    Statutes 

d  Where  a  portion  of  the  proceeds,  representing  an  undivided 
share  or  interest,  is  invested  for  the  benefit  of  a  tenant  for  life,  or 
for  years,  or  of  a  widow,  as  prescribed  in  the  foregoing  provisions 
of  this  article,  the  court  must  cause  it  to  be  invested  in  perma- 
nent securities,  at  interest,  and  the  interest  to  be  paid,  from  time 
to  time,  as  it  accrues,  to  the  person  for  whose  benefit  it  is 
invested,  while  his  or  her  right  continues.     N.  Y.  Code  Civ.  Pro. 

§1583. 

25  3  N.  Y.  R.  S.  594.  §  81. 

eThe  court  may,  in  its  discretion,  require  any  person,  before 
he  receives  his  portion  of  the  proceeds  of  the  sale,  to  give  such 
security  as  it  directs,  to  the  people,  or  to  such  parties  or  other 
persons  as  it  prescribes,  to  refund  the  same,  or  a  portion  thereof, 
with  interest,  if  it  thereafter  appears  he  was  not  entitled  thereto. 
N.  Y.  Code  Civ.  Pro.  ^  1584. 


DISTRIBUTION    OF    PROCEEDS.  369 

provided  that  security  directed  to  be  taken  by  a  court,  or 
any  investment  to  be  made,  or  any  security  to  be  taken 
by  the  commissioners  on  the  sale  of  the  real  estate, 
excepting  where  the  provisions  of  the  law  otherwise 
direct,  such  security  and  the  bonds,  mortgages,  or  other 
evidences  of  debt,  should  be  taken  in  the  name  of  the 
clerk  of  the  court  in  which  the  action  is  tried,  and  his 
successor  in  office,  who  should  hold  the  same  by  virtue  of 
their  respective  offices,  and  deliver  them  to  their  succes- 
sors. The  clerk  of  the  court  was  entitled  to,  and  it  was 
his  duty  to  receive  the  interest  and  the  principal,  when  the 
same  became  due,  and  to  apply  the  same,  or  to  reinvest  it, 
as  the  circumstances  of  the  case  may  require,  and  within 
the  decree  of  the  court,  directing  the  investment.^*  Where 
moneys  deposited  in  the  court,  in  a  suit  for  the  partition 
of  lands,  have  been  invested  by  the  clerk  upon  bond  and 
mortgage  executed  to  him  in  his  official  character,  such 
clerk  has  no  power  to  discharge  the  mortgage  without  the 
order  of  the  court.  Such  discharge  may  be,  although 
unauthorized,  ratified  by  the  owner  of  the  fund  secured 
by  the  mortgage,  because  the  act  of  a  public  officer 
exceeding  the  authority  conferred  on  him  by  law  may  be 
adopted  by  the  party  for  whose  benefit  it  is  done.'"  The 
rule  that  the  act  of  the  public  officer  exceeding  the 
authority  that  is  conferred  upon  him  by  law  may  be 
adopted  by  the  party  for  whose  benefit  it  is  done,  extends 

26  3  N.  Y.  R.  S.  p.  594,  ^§  82.  83      See  16  Barb.  534. 

2"  Farmers'  Loan  &  Trust  Co.  v.  Walworth,  i  N.  Y.  433; 
Frothingham  v.  Haley,  3  Mass.  70  ;  Foster  v.  Bates,  7  Lon.  Jur. 
1093.  See  I  American  Lead.  Cas.  421;  15  Pick.  225;  Hampshire  z/. 
Franklin,  16  Mass.  76;  Zenoz/.  Williams,  9  Lou.  58  Planters  Bank 
V.  Sharpe,  4  Smedes  &  M.  75  ;  Church  v.  Sterling,  16  Conn.  899; 
Ruggles  7/.  Washington  Co.,  3  Miss.  495. 


370  THE    LAW    OF    PARTITION. 

to  the  entire  act  of  the  agent  or  person  professing  to  act 
as  such.^*  ^ 

The  present  Code  of  New  York  directs  that  the  secu- 
rity provided  for  under  any  provision  of  the  article  upon 
partition,  shall  be  taken  in  the  name  and  official  title  of 
the  county  treasurer  of  the  county  in  which  the  property 
is  sold,  and  that  he,  and  his  successors  in  office, must  hold 
the  same  for  the  use  and  benefit  of  the  persons  inter- 
ested, subject  to  the  order  of  the  court.^  This  section  is 
similar  to  the  Revised  Statutes, section  82,  above  referred 
to,  excepting  the  name  of  the  county  treasurer  is  substi- 
tuted for  the  clerk.  It  is  a  general  rule  in  New  York 
State  that  money  paid  into  court,  unless  the  court  other- 
wise specially  directs,  must  be  paid  by  the  officer  who  is 
required  by  law  first  to  receive  it,  to  the  county  treasurer 
of  the  county  where  the  action  is  triable.  This  payment 
should  be  made  to  the  county  treasurer  within  four  days 
after  it  is  received  by  the  official  required  to  receive  it. 
If  this  money  is  invested,  the  bonds  or  mortgages  or 
other  evidences    of    investment  and   securities  must  be 

28  Cushman  v.  Loker,  2  Mass.  106;  Newell  v.  Hulburt,  2  Vt. 

351. 

^  Upon  the  question  that  the  statutes  are  prohibitory  upon 
the  clerk,  see  14  Johns.  273;  8  Paige,  527;  7  Wend.  152.  As  to  who 
must  bear  the  consequences  of  the  error,  see  i  Story  Eq.  399 ;  i 
Cow.  622  ;  7  Paige,  421  ;  9  Id.  317 ;  4  Johns.  Ch.  46  ;  i  Paige,  461  . 
5  Price,  306.  In  relation  to  the  unauthorized  acts  of  trustees,  see 
Story  Eq,  12,  62  ;  i  Johns.  Ch.  581  ;  2  Id.  441  ;  Hill  on  Trustees, 
525. 

K  A  security  taken  under  any  provision  of  this  article,  except 
as  otherwise  specially  prescribed  therein,  must  be  taken  in  the 
name  and  official  title  of  the  county  treasurer  of  the  county  in 
which  the  property  is  situated.  He,  and  his  successors  in  office 
must  hold  the  same  for  the  use  and  benefit  of  the  persons  inter- 
ested, subject  to  the  order  of  the  court.  N.  Y.  Code  Civ.  Pro. 
§  1585. 


DISTRIBUTION    OF    PROCEEDS.  371 

taken  in  the  name  of  the  county  treasurer  of  the 
county.-'  The  court  may,  in  its  discretion,  allow  a  party 
interested  in  the  funds  so  invested  in  the  name  of  the 
county  treasurer  to  bring  and  maintain  an  action  thereon 
in  the  name  of  the  county  treasurer,  in  whose  name  such 
investment  is  made.*"  The  Revised  Statutes  of  New  York 
contain  a  provision  against  abatement  of  the  action  by  the 
death  or  chan:^e  of  office  in  the  county  treasurer,  although 
the  Revised  Statutes  contemplate  the  action  being  brought 
in  the  name  of  the  clerk  in  whose  name  the  investment 
had  been  made.  It  provides  that  no  suit  shall  be  abated 
"  by  the  death,"  removal  from  office  or  resignation  of  the 
clerk  to  whom  such  evidences  were  executed,  or  of  any  of" 
his  successors.'"  By  this  it  seems  that  the  action  may  be 
maintained  in  the  name  of  the  county  treasurer  in  whose- 
name  the  investment  was  made,  or  in  the  name  of  any  of 
his  successors  in  office. 

The  State  of  Pennsylvania  has,  by  its  law,  what  is 
known  as  a  collateral  inheritance  tax  on  estates  in 
remainder.  This  tax  accrues  immediately  upon  the  death 
of  the  decedent  from  whom  the  remaindermen  acquire^ 
title.  The  time  when  the  tax  accrues  is  not  changed  by 
law.  The  limitation,  provided  by  the  act  of  1855,  that  all. 
such  taxes,  not  sued  for  within  twenty  years  after  they 
accrue,  are  presumed  to  be  paid  and  cease  to  be  a  lien  as; 
against  purchasers,  begins  to  run,  therefore,  from  the- 
death  of  the  decedent,  and   not  from  the  death  of  the 

^The  court  may,  in  its  discretion,  and  upon  such  terms  and 
conditions  as  justice  requires,  make  an  order,  allowing  a  person 
interested  in  a  security  specified  in  the  last  section,  to  maintain 
an  action  thereupon  in  the  name  of  the  county  treasurer.  N.  Y. 
Code  Civ.  Pro.  ^  1586. 

2'J  N.  Y.  Civ.  Code  Pro.  ?  745  ;  2  R.  S.  171,  172  ;  4  Edm.  575. 

30  N.  Y.  R.  S.  p.  594, 1  85. 


372  THE    LAW    OF    PARTITION. 

owner  of  the  intervening  estate.  The  action  of  partition 
of  lands,  charged  with  the  lien  of  collateral  inheritance 
tax,  will  not  apportion  the  lien  of  the  tax." 

When  the  question  of  advancements  is  involved  in  a 
partition  suit,  and  it  is  found  that  more  had  been 
advanced  to  the  defendant  than  to  the  plaintiff,  and  the 
plaintiff  was  awarded  the  difference,  to  be  first  paid  out 
of  the  proceeds  of  the  sale  of  the  property,  the  residue 
to  be  equally  divided  between  the  parties,  and  after  the 
appeal,  the  defendant  received  and  retained  the  share 
of  the  proceeds  awarded  to  him  by  the  court,  the  Court 
of  Appeals  of  New  York  held,  that  the  subject  matter  of 
the  appeal  was  not  so  distinct  from  the  fund  out  of  which 
defendant  had  received  a  share,  that  the  amount  receiva- 
ble by  him  could  not  be  affected  thereby,  and  that,  there- 
fore, the  defendant  must  be  deemed  to  have  waived  the 
right  to  prosecute  his  appeal,  and  it  should  be  dis- 
missed." Such  acceptance  was  inconsistent  with  the 
appeal." 

31  Beatty  v.  Commonwealth  of  Pennsylvania,  5  Cent.  R.  841  ; 
Acts  of  March  11,  1850,  and  May  4,  1855  ;  19  Pa,  15  ;  41  Id.  60;  42 
Id.  192  ;  53  Id.  102 ;  10  La.  Ann.  392  ;  72  Pa.  199. 

32  Alexander  v.  Alexander,  6  Cent.  R.  38. 

33  Knapp  V.  Brown,  45  N.  Y.  207  ;  Murphy  v.  Spaulding,  46 
N.  Y.  556;  Barker  v.  White,  58  N.  Y.  211  ;  Genet  v.  Davenport,  59 
N.Y.  648;  Ehrichs  v.  De  Mill,  75  N.Y.  370;  Guernsey  z/.  Mill, 
80  N.  Y.  181,  Contra,  Jaynes  v.  Jaynes,  8  Civ.  Pro.  R.  94; 
Benkard  v.  Babcock,  27  How.  Pr.  391  ;  People  v.  Supervisors, 
58  Barb.  139. 


CHAPTER  XXV. 

EQUALITY   OF  PARTITION  AND  ADJUSTMENTS   OF  RENTS. 

The  New  York  Revised  Statutes  made  provision  that 
"  whenever  partition  shall  be  decreed  by  a  court  of  equity, 
if  it  shall  appear  that  it  cannot  be  made  equal  between 
the  parties,  without  prejudice  to  the  rights  and  interests 
of  some  of  them,  the  court  may  decree  compensation  to 
be  made  by  one  to  the  other,  for  equality  of  partition 
according  to  the  equity  in  the  case."  ^  The  New  York 
Code  of  Civil  Procedure  makes  provision  for  compensa- 
tion for  the  purpose  of  making  an  equality  of  partition.* 

It  is  not  necessary  that  the  shares  assigned  to  the 
several  parties  should  be  exactly  equal  ;  as  the  parties 
who  receive  more  than  their  share  of  the  estate  may  be 
required  to  make  a  pecuniary  compensation  to  those  who 
received  less,  it  being  the  duty  of  the  court  to  take  this 
into  consideration,  and  to  take  into  consideration  that  it 

1  3  N.  Y.  R.  S.  596,  §  97  ;  1  R.  L.  514  §§  16,  17 ;  i  Barb.  506. 

'  Where  it  appears  that  partition  cannot  be  made  equal 
between  the  parties,  according  to  their  respective  rights,  without 
prejudice  to  the  rights  or  interests  of  some  of  them,  the  final 
judgment  may  award  compensation  to  be  made  by  one  party  to 
another  for  equality  of  partition.  But  compensation  cannot  be 
so  awarded  against  a  party  who  is  unknown  or  whose  name  is 
unknown.  Nor  can  it  be  awarded  against  an  infant,  unless  it 
appears,  that  he  has  personal  property  sufficient  to  pay  it,  and 
that  his  interest  will  be  promoted  thereby.  N.  Y.  Code  Civ.  Pro. 
i  1587. 

[37  3J 


374  THE    LAW    OF    PARTITION. 

may  be  impossible  to  so  divide  the  land  that  each  parcel 
should  exactly  correspond  in  value  to  each  of  the  other 
parcels.^  The  commissioners  may  assign  a  portion  of  the 
premises  held  in  common,  to  one  of  the  parties,  charged 
with  a  servitude,  or  easement,  for  the  benefit  of  another 
party,  to  whom  a  distinct  portion  of  the  premises  is 
assigned  in  severalty.* 

In  the  case  of  Hill  v.  Dey,  14  Wend.  204,  cited  by  the 
chancellor  in  his  opinion  in  Smith  v.  Smith,  10  Paige,  470, 
it  appeared  that  the  commissioners  in  partition  had  set 
off  to  one  of  the  parties  one  part  of  the  premises,  by  metes 
and  bounds,  and  another  part  of  the  premises  to  the  other 
in  the  same  way,  the  whole  embracing  two  mills  upon  the 
same  stream  ;  the  one  below  the  other.  The  commis- 
sioners, in  their  report,  in  addition  to  the  land  itself  on 
which  the  lower  mill  was  located,  had  given  to  the  party 
to  whom  that  part  of  the  land  was  set  off,  the  easement 
or  right  to  flow  back  the  water  upon  the  land  assigned  to 
the  other,  in  the  same  manner  and  to  the  same  extent 
that  such  water  had  been  flowed  back  previous  to  the  par- 
tition. Notwithstanding  that  the  question  there  arose 
upon  the  construction  of  the  report  of  the  commissioners, 
the  court  recognizes  the  principle  that  the  commissioners 
might  assign  one  part  of  the  premises  to  a  party,  charged 
with  a  servitude,  or  easement,  for  the  benefit  of  another 
party,  to  whom  a  distinct  portion  of  the  land  was  assigned 
by  metes  and  bounds,  and  could  so  make  its  decree  that 
equitable  partition  could  be  had  between  the  parties.* 
Partition  can  be  had  of  a  mere  equitable  estate. 

2  Larkin  v.  Mann,  2  Paige,  27,  ante. 

3  Smith  V.  Smith,  10  Paige,  470,  ante  ;  citing  14  Wend.  204. 

4  Morrill  v.  Morrill,  5  N.  H.  134,  ante;  Warren  v.  Baynes,  2 
Blunt  Amb.  589 ;  i  Peere  Wms.  446. 


EQUALITY.  375 

A'  tenant  in  common,  in  possession,  will  be  allowed 
for  substantial  and  useful  improvements,  but  not  for  such 
improvements  as  are  merely  ornamental.  The  reason 
why  a  tenant  in  common  will  be  allowed  for  improve- 
ments,— that  is,  necessary  and  substantial  improvements, 
— is  because  the  possession  of  one  tenant  in  common  is 
the  possession  of  that  of  his  co-tenants.^  The  court  can 
properly  render  a  judgment  declaring  the  rights  of  the 
parties,  and  directing  that  partition  should  be  made;  and 
also  providing  for  an  account  between  the  parties  in 
respect  to  the  matters  pertaining  to  the  estate,  and  in 
respect  to  the  rents  and  profits  already  received.*  If 
there  is  inequality  of  value  between  one  portion  that  can- 
not be  divided,  and  another  portion  that  can  be,  the  com- 
missioners may  make  such  allotment  of  parcels  as  will 
produce  equality  by  awarding  proper  compensation  in 
money.'  The  court  will  not  set  aside  a  report  requiring 
a  payment  to  equalize,  unless  the  power  has  been  abused 
or  so  exercised  as  to  operate  unjustly. 

The  property  of  a  lunatic  is  at  all  times  under  the  con- 
trol of  the  court,  even  though  the  property  may  be  in  the 
hands  of  a  committee,  as  the  committee  is  an  officer 
appointed  by  the  court  and  subject  to  the  rules  of  the 
court  which  appointed  him,  and  in  case  an  idiot  or  a  luna- 
tic co-tenant  injures  the  property  held  in  common  by 
pulling  down  buildings  or  demolishing  necessary  improve- 
ments, the  court  is  authorized  to  make  equitable  partition 
of  the  land  upon  proper  petition,  and  to  compensate  those 


5  Hitchcock  V.  Skinner,  Hoffm.  Ch.  21,  ante :  Cartwright  v. 
Pulteney,  2  Atk.  380;  Cose  v.  Smith,  4  Johns.  Ch.  271 ;  Turner  % 
Morgan,  8  Vesey,  145. 

^  Brownson  v.  Gifford.  8  How.  389. 

'  Walker  v.  Walker,  3  Abb.  N.  C.  12,  ante. 


376  THE    LAW    OF    PARTITION. 

who  have  been  injured  by  reason  of  the  act  of  the  idiot  or 
lunatic.  Where  an  idiot  who  was  under  the  care  of  a 
committee  appointed  by  the  court,  pulled  down  a  school- 
house  standing  upon  lands  owned  by  him  and  the  trustees 
of  the  school-district,  the  court  authorized  an  equitable 
partition  of  the  land,  so  as  to  compensate  the  trustees  for 
the  share  of  the  school-house  which  belonged  to  them.* 

It  might  be  claimed  that  idiocy  or  lunacy  was  a  defense, 
but,  if  in  such  case  it  should  be  a  defense,  the  court  could 
not  do  justice  and  equity  to  the  parties  interested  in  the 
premises.  Idiocy  and  lunacy  would  be  defenses,  if  estab- 
lished, against  the  charge  that  the  person  who  had 
demolished  it  had  by  so  doing  committed  a  crime,  but  it 
would  be  no  reason  why  courts  in  making  a  division  of  the 
property  between  the  co-tenants  should  not  do  equity  by 
compensating  those  who  had  been  injured  by  reason  of 
the  act  of  the  one  who  was  deprived  of  his  understanding. 
The  parties  are  in  court  for  the  purpose  of  having  an 
equitable  division  of  their  property  made,  and  while  it  is 
the  duty  of  the  court  to  protect  the  property  of  the  one 
who  is  disabled  by  reason  of  lunacy  or  idiocy,  it  is  also 
the  duty  of  the  court  to  do  exact  justice  in  the  case,  and 
the  plaintiff  must  come  into  court  for  justice  and  nothing 
else.^  The  court  would  have  power  to  order  a  sale  of  an 
idiot's  or  lunatic's  real  estate  for  the  payment  of  his  debts. 
This  law  is  one  that  has  been  well  established  for  many 
years.  If  the  idiot  or  lunatic  injured  the  property  by  an 
act  which  if  in  his  right  mind  would  have  been  criminal 
or  a  wrongful  act,  he  creates  a  debt  to  his  fellow  co-ten- 
ant for  which  he  is  liable  ;  and  the  court  controlling  the 

8  Matter  of  Heller,  3  Paige,  199.     See  7  Paige,  315. 

9  I  Jac.  &  Walk,  636 ;  5  Mad.  406  ,  i  Hogan,  98. 


EQUALITY.  *  2)11 

property  will  compel  the  payment  of  that  debt  in  a  par- 
tition suit  by  an  equitable  distribution  of  the  property  or 
its  proceeds  in  case  of  a  sale. 

Where  one  of  several  co-tenants,  who  is  in  possession 
of  the  premises  held  in  common,  claiming  title  to  the 
whole,  sells  and  conveys  the  same  to  a  third  person,  who 
enters  under  that  conveyance  claiming  title  to  the  whole, 
it  is  such  an  ouster  of  the  other  tenants  in  common  as  to 
bar  their  right  of  entry  after  an  adverse  possession  of 
twenty  years.  Where,  in  such  case,  the  purchaser,  being 
in  possession  and  supposing  himself  legally  entitled  to 
the  whole  of  the  premises,  makes  valuable  improvements 
thereto  by  erecting  valuable  buildings  thereon,  he  will  be 
entitled  to  an  equitable  partition  of  the  premises,  so  as 
to  give  him  the  benefit  of  the  improvements  made  by  him 
in  good  faith  at  the  time  he  supposed  he  was  the  owner 
thereof/"  Where  one  tenant  in  common  makes  improve- 
ments on  the  land,  a  court  of  equity,  in  making  partition, 
will  decree  an  account  and  compensation,  or  else  assign 
to  him  that  part  of  the  premises  on  which  the  improve- 
ments have  been  made;  and  it  is  not  necessary  to  show 
the  assent  of  his  co-tenants,  nor  a  request  or  refusal  to 
join  in  the  improvements.^^  The  statute  of  limitations 
has  no  application  to  an  equitable  claim,  on  a  partition,  by 
one  tenant  in  common,  for  compensation  for  his  improve- 
ments. Where  one,  supposing  that  he  owns  the  whole  of 
the  land,  and  has  the  only  record  title  thereto,  in  good  faith 
improves  part  of  the  land  and  makes  mortgages  upon  it, 
and  sells  a  portion  of  it,  if  afterward  it  should  turn  out 

JO  Town  V.  Needham,  3  Paige,  545  ;  citing  4  Mas.  327  ;  5  Pet. 
402  ;  13  Johns.  406  ;  9  Cow,  530;  2  Paige,  54  ;  i  Johns.  Ch.  354  ; 
6  Durn.  &  E.  556. 

11  Green  v.  Putnam,  i  Barb.  500,  ante. 


^yS  THE    LAW    OF    PARTITION. 

that  the  legal  estate  in  a  portion  of  it  is  in  other  persons, 
and  that  he  is  a  tenant  in  common  with  those  other  per- 
sons, the  court,  on  a  bill  for  partition,  would  allow  to  him 
or  to  his  grantees,  the  improved  portion  of  the  premises, 
and  the  mortgages  made  by  him  in  good  faith  would  be 
liens  thereon. ^^  Equity  may  direct  a  partition  for  the 
purpose  of  setting  off  one  co-tenant's  share,  and  decree- 
ing a  sale  of  the  residue  for  the  benefit  of  the  other  ten- 
ants, providing  for  compensation  in  case  of  inequality  in 
the  allotment  of  the  land  as  divided  and  allotted  between 
the  respective  co-tenants."  The  English  law  is  similar 
to  the  American  in  reference  to  an  equality  of  partition. 
Freehold  and  leasehold  property  belonging  to  two  sisters, 
tenants  in  common,  was  settled  upon  their  respective 
marriages  in  the  usual  way.  An  agreement  was  after- 
ward come  to  by  which  the  property  was  to  be  parti- 
tioned, and  held  in  severalty  on  the  trust  of  the  two 
marriage  settlements,  a  sum  of  money  being  paid  for 
equality  of  partition.  That  sum  was  never  paid,  but 
interest  was  paid  upon  it.  The  parties  entitled  under  each 
settlement  took  possession  of  the  property  allotted  to 
them,  and,  as  the  result  of  larger  expenditure  upon  the 
property  which  was  originally  the  most  valuable,  its  value 
increased  to  a  greater  extent  than  did  that  of  the  less 
valuable  property.  Children  having  been  born  of  each 
marriage,  an  action  for  partition  on  the  basis  of  the  agree- 
ment was  commenced.  The  court  held,  that  in  calculat- 
ing the  amount  to  be  paid  for  equality  of  partition,  one 
moiety  of  the  difference  between  the  present  values  of  the 

12  St.  Felix  V.  Rankin,  3  Edw.  Ch.  323.  See  4  Lea  (Tenn.) 
474;  Conklin  7/.  Conklin,  3  Sandf.  Ch.  64;  Neeson  v.  Clarkson,  4 
Hare,  97. 

13  Haywood  v.    Judson,  4  Barb.  228,  anie. 


EQUALITY.  379 

properties  should  be  taken,  expenditures  by  both  sides  on 
permanent  improvements  having  been  first  deducted."  The 
court  before  whom  the  action  is  tried,  is  not  restricted, 
as  a  court  of  law  is,  to  a  mere  partition  of  the  lands 
between  the  parties,  according  to  their  interest  in  the 
same,  and  having  a  regard  to  the  true  value  thereof,  but 
can  make  an  equitable  division  of  the  property.'' 

Where,  in  a  partition  suit,  actual  partition  cannot  be 
made,  and  a  sale  is  decreed,  the  question  as  to  the  distri- 
bution of  the  proceeds  of  the  sale  of  any  undivided  share 
of  the  premises,  between  the  owner  and  the  incum- 
brancers, is  collateral  to  the  main  purpose  of  the  action  ; 
the  court,  having  jurisdiction  of  the  fund,  adjudges  how 
distribution  shall  be  made  thereof.  Where,  in  such  case, 
in  accordance  with  the  practice  of  the  court,  an  order  of 
reference  is  granted  directing  the  referee  to  ascertain  and 
report  the  amount  due  to  any  party  to  the  action  who 
has  any  general  or  specific  lien  upon  the  premises,  the 
referee  is  authorized  to  take  proof  and  pass  upon  the 
question  of  the  validity  of  a  mortgage  upon  an  undivided 
share,  claimed  by  one  of  the  parties,  although  the  ques- 
tion is  not  raised  by  any  formal  issue  in  the  pleadings.'" 
The  general  rule  authorizing  the  court  to  adjust,  by  its 
decree,  the  equitable  rights  of  every  party  to  the  action 
and  to  the  fund,  allows  the  court  to  adjust  the  validity  of 
a  mortgage,  claimed  to  be  a  lien  upon  the  share  of  any 


14  Watson  V.  Gass,  51  L.  J.  Ch.  Div.  480;  45  L.  T.  N.  S.  583; 
50  W.  R.  286. 

15  Hibbard  v.  Dayton,  32  Hun,  220  ;  Green  v.  Putnam,  i  Barb. 
509,  ante. 

i«  Halsted  7/.  Halsted,  55  N.  Y.  442,  a7ile.  Contra,  Wright 
V.  Delafield,  25  N.  Y.  266 ;  Garvey  2/.  Jarvis,  54  Barb.  179;  Bull- 
winker  V.  Ryker,  12  Abb.  Pr.  311. 


380  THE     LAW    OF     PARTITION. 

co-tenant."  The  referee  may  determine  the  respective 
shares  which  each  of  the  parties  is  entitled  to  receive,  the 
amounts  which  certain  parties  in  interest  have  received 
from  the  estate,  but  cannot  charge  interest  upon  such 
amounts  received,  as  there  are  no  legal  grounds  upon 
which  it  could  be  computed  or  charged.  Upon  an  appeal 
from  a  judgment  entered  in  accordance  with  the  report 
of  the  referee  reporting  that  interest  should  be  charged, 
the  appellate  court  may  modify  the  final  order  by  direct- 
ing the  shares  of  the  appealing  defendant  to  be  ascer- 
tained by  excluding  therefrom  the  interest  charges  made 
and  contained  in  the  referee's  reporL,  against  the  amounts 
received  by  each  of  the  persons  interested  in  the  estate^ 
The  shares  of  the  co-tenants  who  have  received  advance- 
ments or  money  from  the  estate,  should  be  allotted  to 
them,  less  such  advancements  or  money  received,  exclu- 
sive of  interest  thereon."  The  defendants  have  the  right 
to  bring  to  the  notice  of  the  court,  before  the  awarding 
of  partition,  any  advancements  made  by  the  ancestor  to 
any  of  the  heirs;  and  such  advancements,  when  their 
amount  has  been  ascertained,  must  be  taken  into  consid- 
eration by  the  court  in  specifying  the  shares  to  be 
assigned  on  partition." 

Partition  under  the  statute  is  in  the  nature  of  a  bill  in 
equity.'"  In  a  petition  for  a  partition,  under  the  statute  of 
New  Hampshire,  the  committee  has  no  authority,  without 
the  consent  of  the  parties,  to  set  off  to  one,  more  than 


17  Willard  Eq.  48  ;  Story  Eq.  Jur.  §  64  ;  Scott  v.  Guernsey,  60 

Barb.  178. 

18  Piatt  V.  Piatt,  42  Hun,  592. 

19  Kepler  v.  Kepler,  2  Carter,  363, 

20  Nesmith  v.  Dinsmore,  17  N.  H.  515. 


EQUALITY.  381 

his  just  share  of  the  estate,  and  then  award,  that  he  pay  a 
sum  of  money  to  the  others  to  make  an  equahty."' 

The  committee  may,  and  generally  it  should,  receive 
such  offers  as  may  be  made  by  the  several  owners,  for  a 
choice  of  the  parcels  into  which  the  premises  are 
divided.^  When  it  is  impossible  to  divide  an  estate 
between  tenants  in  common  by  assigning  to  each  other 
his  portion  of  the  land, — that  is,when  the  tenants  in  com- 
mon refuse  so  to  do, — the  remedy  is  to  resort  to  a  court  of 
equity,  which  has  power  to  compel  the  sale  of  the  entire 
estate,  in  case  it  cannot  be  partitioned  and  allotted,  and 
order  distribution  of  its  proceeds  upon  an  equita- 
ble basis.^  The  proceeds  of  the  sale  of  one  tract  of  land 
cannot  be  applied  to  payment  of  fees  or  costs  in  the  par- 
tition of  another  tract  of  land.^*  To  enable  the  court  to 
make  a  decree  of  partition,  the  equitable  rights  of  the 
parties  should  appear  by  the  pleadings.  Those  rights 
should  be  set  forth  plainly  and  fully,  so  that  the  court  may 
understand,  at  the  commencement  of  the  action,  that 
which  is  claimed  by  the  parties  who  are  before  it.^ 

As  between  tenants  in  common,  one  ought  not  to 
profit  by  improvements  made  by  another,  or  money 
advanced  to  save  the  estate,  but  should  make  fair  equita- 
ble contribution.  If  a  party  receive  the  purchase  money 
of  the  land  sold,  he  affirms  the  sale,  and  he  cannot  claim 


21  Whitney  v.  Parker,  i  N.  Eng.  164. 

22  Timon  v.  Moran,  54  N.  H.  441. 

23  Barney  v.  Leeds,  54  N.  H.  128.     See  52  Id.  613. 

24  Dale  V.  Dale,  3  West.  R.  264  ;  citing  73  Mo.  590  ;  45  Mo.  106  ; 
63  Mo.  258  ;  61  Mo.  221  ;  60  Mo.  105  ;  29  Mo.  13. 

*5  Cooterzj.  Dearborn,  2  West.  R.  399;  Hopkins  v.  Medley,  97 
111.402;  JessupT/.  Jessup,  102  111.  480  ;  Wilton  t/.  Tazwell,  86  111. 
29;  Maple  t/.  Kussart,  53Penn.St,  348;  Stroble  v.  Smith,  8  Watts, 
280;  Brandon  v.  Brown,  106  111.  527. 


'»82  THE    LAW    OF    PARTITION. 

against  it,  whether  the  sale  was  void  or  voidable.  The 
receiving  of  the  money  is  an  estoppel  in  the  computation  ' 
for  improvements  in  partition  proceedings.  The  co-ten- 
ant against  whom  the  improvements  are  charged  should 
not  be  charged  with  the  price  of  the  improvements,  but 
only  with  his  proportion  of  the  amount,  which,  at  the 
time  of  partition,  the  improvements  add  to  the  value  of 
the  premises,  with  a  deduction  of  any  sum  to  which  he 
may  have  a  just  claim  for  the  use  and  occupancy  of  his 
share  by  the  co-tenant  who  made  the  improvements.^ 
The  plea  of  an  infant  made  to  the  effect  that  his  guardian 
had  no  power  to  convey  the  interest  of  his  ward  as  an 
heir  at  law  in  real  estate,  without  the  order  of  the  court, 
may  be  taken,  and  such  infant  co-tenant  is  not  guilty  of 
laches,  if  he  fails  to  bring  a  suit  for  partition  and  to 
cancel  the  deed  within  three  years  after  he  shall  arrive  at 
his  majority.  The  reason  for  this  is,  that  the  possession 
of  one  tenant  in  common  is  the  possession  of  all." 
When  an  infant  brings  his  suit  in  partition,  and  to  set 
aside  a  fraudulent  deed,  if  he  is  not  entitled  to  possession, 
but  establishes  that  he  is  entitled  to  an  equitable  parti- 
tion of  the  premises,  compensation  to  such  infant  may  be 
decreed. 

The  beneficiary  in  a  deed  of  trust  to  secure  the  pay- 
ment of  a  debt  is  a  proper  party  to  a  suit  for  the  partition 
of  land.  Where  one  who  is  entitled  to  a  distributive 
share  is  dead,  his  administrator,  in  the  regular  course  of 
proceedings,  .should  be  made  a  party  to  the  suit.  The 
administrator  can  be  appointed  at  the  instance  of  the 
heirs,  or  of  the  trustee  named  in  the  deed  of  trust,  pro- 
viding  he  was   a   creditor    of  the  deceased  distributee's 

26  Rowan  v.  Reed,  19  111.  28  ;  Freem.  Coten.  §  510. 

27  Dugan  V.  Follett,  106  III.  588  ;  Ballz/.  Palmer,  81  111.  370. 


EQUALITY.  38 


o"o 


estate.  In  such  a  case,  where,  instead  of  pursuing  this 
course,  or  making  any  such  suggestions  to  the  court,  the 
trustee  made  the  specific  issue  that  he  was  entitled  by- 
contract  to  one-fourth  of  the  proceeds  reahzed  at  the 
sale  of  the  trust  estate,  and  the  issue  was  fairly  adjudged 
against  him,  he  must  abide  the  consequences.  If  he 
changes  his  demand  to  a  claim  for  an  indebtedness  justly 
due  to  him,  the  court  would  be  justified  in  taking  into 
consideration  such  demand  upon  an  equitable  distribution 
of   the  property.® 

It  is  for  the  court  to  determine  whether  there  shall  be 
a  partition  or  a  sale  of  the  property,  and,  whenever  that 
determination  is  made,  the  rights  and  interests  of  all  per- 
sons concerned  in  the  property  should  be  presented  to  the 
court,  that  an  equitable  provision  may  be  made  in  refer- 
ence to  such  rights.  The  inchoate  right  of  dower  of  the 
wife  of  a  co-tenant  should  be  presented  to  the  court  in 
some  way  during  the  pendency  of  the  partition  suit.  If 
it  is  not  presented  to  the  court,  and  a  judgment  of  parti- 
tion is  taken,  making  no  allowance  or  provision  for  such 
inchoate  right  of  dower,  such  judgment  is  a  bar  to  an 
action  to  recover  dower  thereafter.  It  is  the  general 
intent  of  the  statutes,  in  reference  to  partition,  to  cut  off 
the  inchoate  right  of  dower  of  any  party  to  a  partition 
suit,  as  a  general  rule  ;  and  if  the  position  is  tenable, 
the  claim  for  dower,  being  an  adverse  one  accruing  before 
the  titles  of  the  tenants  in  common,  could  not  be  deter- 
mined in  the  partition  suit,  it  should  be  presented  in  some 
form  in  that  action  ;  and  when  the  owner  of  such  incho- 
ate right  fails  to  do  this,  she  cannot,  in  another  action, 
claim  that  she   was   unlawfully    deprived  of    her    dower 

2«  Harbison  v.  Sanford,  7  West.  R.  733  ;  citing  79  Mo.  555  ;  47 
Id.  544,  76  ;  48  Id.  300 ;  i  Mo.  R.  S.  §  4010. 


384  THE    LAW    OF    PARTITION. 

jright.'"     A  purchaser  on  a  partition,  under  the  order  of 
the  court,  is  entitled  to  be  protected  even  against  error." 
There  is  nothing  contained  in  the  partition  act,  as  set 
forth  in  the  New  York  Code  of  Civil  Procedure,  that  pre- 
vents the    court  from  adjusting,    in   its  interlocutory  or 
final  judgment,  the  rents  and  profits  of  the  premises.^     In 
the    partition    of   lands,   upon   which   there   is    a    stone 
quarry,  the  co-tenant,  who  has  had  the  possession  of  the 
quarry,  is  bound  to  account  for  the  rent  of  the  premises, 
providing   he    has    rented   them,    and    for   the    moneys 
received  by  him  for  stone  sold  from  the  quarry;   and  such 
use  and  rental  of  the  premises  may  be  set  forth  in  the 
pleadings.     Such  accounting  is  upon  an  equitable  basis, 
the  rights  of  the  party  in  possession  of  the  stone  quarry 
being  taken  into  consideration.^^     The  co-tenant  can  be 
compelled  to  account  for  the  cutting  off  and  selling  of 
timber  on  unimproved  grounds,*^  and  for  coal  or  minerals 
mined  and  sold  by  the  co-tenant  in  possession.'' 

29  Jordan  v.  Van  Epps,  85  N.  Y.  427,  anie  ;  4  Paige,  98  ;  3  Id. 
342;  2  Barb.  398;  5  Id.  57:46  N.  Y.  182;  5  Den.  385;  6  Abb.  Pr. 
60;  15  N.  Y.  617;  56  Id.  226;  58  Id.  176;  Freem.  on  Jud.  §  304; 
Scribner  on  Dower,  331  ;  Wright  v.  Dunning,  46  111.  271  ;  Whitte- 
more  v.  Shaw,  8  N.  H.  393  ;  Pentz  v.  Kuester,  41  Mo.  447  ;  Hunt  v. 
Hunt,  72  N.  Y.  218;  Searle?^.  Galbraith,  73  111.  269;  Guthrie  7/. 
Lowry,  84  Penn,  St.  537;  Spaulding?-.  Baldwin,  31  Ind.  376. 

30  Holden  v.  Sackett,  12  Abb.  Pr.  473. 

^  Nothing  contained  in  this  article  prevents  the  court  from 
adjusting,  in  the  interlocutory  or  final  judgment,  or  otherwise,  as 
the  case  requires,  the  rights  of  one  or  more  of  the  parties,  as 
against  any  other  party  or  parties,  by  reason  of  the  receipt,  by 
the  latter,  of  more  than  his  or  their  proper  proportion  of  the 
rents  or  profits  of  a  share,  or  part  of  a  share.  N,  Y.  Code  Civ. 
Pro.  §  1589. 

31  McCabe  v.  McCabe,  18  Hun,  153. 

32  Elwell  V.  Burnside,  44  Barb.  447. 

33  Job  V.  Potton,  L.  R.  20  Eq.  84;  Coleman  v.  Coleman,  i 
Parson  Penn.  470  ;  Curtis  v.  Coleman,  22  Grant,  562. 


EQUALITY.  385 

The  remedy  by  an  action  for  rents,  by  one  tenant  in 
common  against  another,  is  cumulative,  and  does  not  bar 
the  equitable  adjustment  of  them  on  a  partition  in  equity. 
The  rents  are  a  lien  upon  the  shares  or  interests  of  any 
co-tenant  from  whom  they  may  be  had.  Where  rents  are 
due  from  one  tenant  in  common  at  the  time  of  the  death 
of  another  tenant  in  common,  the  administrator  of  the 
latter  is  a  proper  party  to  an  action  of  partition,  and  he 
is  entitled  to  receive  the  rents  due  his  intestate  at  the 
time  of  his  death."  Where  a  co-tenant  who  has  not  paid 
his  share  of  the  improvements  seeks  partition,  the  court 
will  so  make  partition  so  as  to  allot  to  such  co-tenant 
making  the  improvements  the  improved  portion  of  the 
property.^^  Such  improvements  may  be  offset  against  the 
use  and  occupancy  of  the  land,  or  against  the  rents  received 
therefor,  notwithstanding  that  the  co-tenant  in  possession 
may  have  made  improvements  upon  the  land,  he  must 
account  for  the  rents  of  the  property  so  occupied  by 
him/^  A  co-tenant  in  common  receiving  rents  does 
not  receive  them  for  his  co-tenants  in  a  body,  but  each 
one's  share  for  the  person  entitled  thereto.  In  accounting 
for  such  rents  and  profits  to  such  co-tenants,  he  is  entitled 
for  an  allowance  of  such  sums  as  he  may  have  paid  for 
taxes  and  assessments  on  the  premises,  or  for  keeping  the 
same  in  ordinary  repair.  Upon  the  death  of  a  tenant  in 
common  who  has  received  more  than  his  share  of  the 
rents  and  profits  of  the  estate,  the  amount  due  to  his  co- 
tenant,  which  is  personally  charged,  is  payable  out  of  the 


■'■*  Scott  V.  Guernsey,  48  N.  Y.  106,  ante. 

35  Louvalle  v.  Menard,  i  Gilm.  39;  Haskins  t/.  Spiller.  i   Dana, 
170. 

•"■'  Rasspass  v.  Breckinridge.  2  A.  K.  Marsh.  581. 
25 


386  THE    LAW    OF    PARTITION. 

personal  estate  of  the  decedent.^     The  excess  of  rents 
received  is  a  lien  on  the  share  of  the  one  receiving  it.'' 

In  an  action  for  partition,  the  defendants,  being  in 
default,  cannot  be  required  to  render  an  account  for  rents 
and  profits,  if  the  complaint  does  not  specifically  ask  for 
such  relief.  This  is  true,  notwithstanding  the  rent  may- 
be a  lien  upon  the  share  of  the  co-tenant  having  benefit 
thereof,  because  he  is  entitled  to  notice  by  the  pleadings 
that  a  demand  shall  be  made  against  him  for  such  rent  ; 
and  the  court,  as  a  general  rule,  has  no  power  to  grant, 
against  one  in  default,  a  greater  relief  than  that  asked 
for  in  the  complaint.  '' 

When  property  is  held  in  trust  for  the  benefit  and  sup- 
port of  members  of  an  association,  no  rights  descend  to  the 
heirs  of  the  members.  Therefore,  there  can  be  no  partition 
upon  the  part  of  one  of  the  heirs  of  such  an  association. 
In  1 817,  a  society  called  Separatists  came  from  Germany  to 
the  United  States.  One  of  them  purchased  land  in  Ohio, 
for  which  he  gave  his  bond,  and  took  the  title  to  himself 
Afterwards,  the  society  adopted  laws  governing  itself,  and 
in  1832  obtained  an  act  of  incorporation.  The  articles  of 
the  association  contained  a  renunciation  of  individual 
property.  One  of  the  members,  who  signed  the  articles 
of  association,  died  in  1827.  Thereafter,  one  of  his  heirs 
began  a  partition  suit  of  the  property.  No  legal  rights 
were  vested  in  the  members.  The  ancestor  of  the  heir 
had  renounced  all  right  of  individual  property,  when  he 
signed  the  articles  of  association,  and  did  so  upon  con- 

S7  Hall  V.  Fisher,  20  Barb.  446 ;  Hannan  -v.  Osborn,  4  Paige, 
336.  See  6  Cow.  475 ;  i  Comyn.  Z"]  ;  i  Salk.  250 ;  i  Peere 
Wms.  25  ;  2  Ver.  233 ;  6  Coke,  18 ;  i  Ves.  Jun.  145. 

38  Warfield  v.  Crane,  4  Keyes,  448  ;  Brede  v.  Lathrop,  32  N.  Y. 

535- 

39  BuUwinker  ^'.  Ryker,  12  Abb.  Pr.  ^11,  ante. 


EQUALITY.  3^7 

sideration  that  the  society  would  support  him  in  sickness 
and  in  health  ;  and  this  by  him  was  deemed  an  ample 
consideration  and  compensation  for  his  labor  in  the  society 
and  for  his  interest  in  the  common  property,  or  property 
contributed  to  the  common  stock.  The  court  has  no 
legal  objection  to  such  association  or  partnership,  as  it 
was  deemed  by  the  court,  but  it  could  not  he  considered 
a  forfeiture  of  individual  rights  for  the  community  to  suc- 
ceed to  the  share  of  the  deceased  member,  because  it  was 
a  matter  of  voluntary  contract  by  him  with  ample  con- 
sideration. Therefore,  no  partition  of  lands  could  be  had 
by  the  heirs  of  the  deceased  member  of  the  community." 
The  party  bringing  such  action  could  not  claim  an  ac- 
counting for  the  rents  and  profits  of  the  lands,  for  at  the 
death  of  his  ancestor  no  title  or  interest  in  the  property- 
passed  to,  or  became  vested  in  him. 

An  incumbrance  created  upon  an  inheritance  by  an' 
ancestor  is  a  good  defense  against  the  payment  of  the 
valuation  of  the  money  by  the  heir  to  whom  the  estate- 
was  allotted  in  proceedings  in  partition.  *^  Where  an  heir 
takes  land  at  an  appraised  valuation,  his  own  share  of 
the  appraised  land  is  merged  in  the  fee. 

The  object  of  partition  is  to  have  an  equitable  division 
of  the  property  held  in  common  by  the  co-tenants,  and 
that  each  may  have  his  or  her  individual  share  of  the 
property  or  of  the  proceeds  of  the  sale  of  the  property,, 
after  considering  the  equities  arising  in  the  case  in  favor 
or  against  each  co-tenant.  For  the  sake  of  convenience  in 
equity,  a  recompense  may  be  made  by  a  sum  of  money 
to  one  of  the  parties,  so  as  to  prevent  injustice  or  unavoid- 
able neglect,  or  the  court  may  order  a  sale  of  the  subject 

*^'  Goesele  v.  Bimeler,  14  How.  U.  S.  589. 
41  Seaton  v.   Barry,  4  Watts  &  S.  183. 


388  THE    LAW    OF    PARTITION. 


matter  and  a  division  among  the  several  owners  accord- 
ing to  their  respective  titles,  taking  into  consideration 
such  equities  as  each  may  be  entitled  to,  and  allowing  a 
full  and  fair  compensation  for  adjustment,  making  the 
charges  against  such  co-tenant  or  co-tenants  as  equity 
would  demand.  When  a  court  of  equity  obtains  jurisdic- 
tion of  a  subject  matter  for  any  purpose,  it  will  retain  it 
for  all  purposes  of  affording  adequate  and  full  relief  be- 
tween the  parties.  " 

*2  Shelly  V.  Shelly,  8  Watts  &  S.  153  ;  Pell  v.  Ball,  i  Rich.  Eq. 
361,  ante  ;  McGillivray  v.  Evans,  27  Cal.  92  ;  Royston  v.  Royston, 
13  Ga.  425  ;  Graham  v,  Graham,  8  Bush,  334;  Thurston  v.  Minke, 
32  Md.  571  ;  Roes  v,  Ramsey,  3  Head,  15 ;  Wallace  v.  Wallace,  6 
West.  R.  113. 


CHAPTER  XXVI. 


ABATEMENT. 


It  is  a  rule  of  practice  generally  that  an  action  does 
not  abate  by  any  event,  even  by  death,  if  the  cause  of 
action  survives  or  continues.  ^  In  case  of  the  death  of  a 
sole  plaintiff,  or  a  sole  defendant,  if  the  cause  of  action 
survives  or  continues,  the  court,  upon  motion,  must  allow, 
and,  in  fact,  compel  the  action  to  be  continued,  by  or 
against  the  representative,  or  successor  in  interest.  ^ 
Judgment  against  a  party,  who  dies  before  a  verdict  is 
rendered,  or  before  the  report  or  decision  is  actually 
entered  against  him,  cannot  be  entered.  In  case  such  a 
judgment  should  be  entered,  the  verdict,  report,  or 
decision  is  absolutely  void,  and  the  judgment  entered 
upon  it  is  worthless.  ^  The  decision  referred  to,  is  the 
written  findings  of  facts  and  the  legal  conclusions  with  the 
directions  for  the  final  judgment  to  be  entered,  and  which 
must  constitute  a  part  of  the  judgment-roll.  ■* 

In  an  action  of  partition,  upon  the  death  of  one  of 
two  or  more  of  the  plaintiffs,  or  upon  the  death  of  one  of 

1  N.  y.  Code  Civ.  Pro.  g  755-     See  44  N.  Y.  666  ;  59  Id.  450. 

2  N.  Y.  Code  Civ.  Pro.  §  757  ;  McGregor  v.  McGregor,  35  N. 
Y.  218  ;  Richardson  v.  Draper,  87  Id.  337. 

3  N.  Y.  Code  Civ.  Pro,  §  765. 

*  Adams  v.  Nellis,  59  How.  Pr.  385. 

[389] 


390  THE    LAW    OF    PARTITION. 

two  or  more  of  the  defendants,  the  interest  of  the  de- 
ceased person  in  the  property  passes  to  a  person  not  a 
party  to  the  action,  such  party  may  be  made  defendant 
by  the  order  of  the  court  ;  and  the  court  may  direct 
and  the  law  allows  a  supplemental  summons  to  be 
served  upon  him,  so  as  to  bring  him  regularly  before 
the  court,  that  his  interest  in  the  premises  sought  to  be 
partitioned  and  owned  by  him,  by  reason  of  his  inherit- 
ing the  same  from  the  deceased  co-tenant,  may  be  prop- 
erly passed  upon  and  equitably  adjudicated.  *  Where 
a  bill  is  filled  for  partition  of  real  estate  and  for  an  ac- 
count of  the  rents  and  profits  received  by  the  defendants, 
and  the  suit  afterward  abates  by  the  death  of  the  com- 
plainant, the  heir  at  law  may  apply  by  petition  to  revive 
the  suit,  so  far  as  relates  to  the  partition  of  the  estate 
and  the  rents  and  profits  subsequent  to  the  descent  to  such 
heir,  without  joining  with  the  personal  representatives  of 
the  original  complainant,  who  are  entitled  to  the  rents 
and  profits  which  accrued  before  that  time.  If  the  per- 
sonal representatives  of  the  decedent  neglect  to  revive 
the  suit,  so  far  as  their  interest  is  concerned,  the  defend- 
ants may  proceed  as  in  other  cases  where  the  representa- 
tives of  a  sole  complainant  neglect  to  revive  the  suit  after 
his  death.  ' 

After  judgment  for  sale  and  partition  and  the  adver- 
tising the  sale  had  commenced,  plaintiff  died,    and   such 

*  If,  upon  the  death  of  one  of  two  or  more  plaintiffs,  or  one  of 
two  or  more  defendants,  in  an  action  for  partition,  the  interest  of 
the  decedent  in  the  property  passed  to  a  person,  not  a  party  to 
the  action,  the  latter  may  be  made  defendant  by  the  order  of  the 
court;  and  a  supplemental  summons  maybe  issued,  to  bring 
him  in  accordingly.     N.  Y.  Code  Civ.  Pro.  |  1588. 

5  Hoffman  v.  Tredwell,  6  Paige,  308  ;  Ferrers  v.  Cheny,  i  Eq. 
Cases  Abr.  4  pi.  11. 


ABATEMENT.  39 1 

of  his  heirs  as  were  not  parties  defendant  were  substi- 
tuted in  his  place  as  plaintiff.  The  court  held  there  was  no 
irreg-ularity  in  continuing  the  advertisement  in  the  same 
form  as  orig-inally  commenced,  and  seUing  the  premises 
in  pursuance  thereof.  In  speaking  of  what  had  been 
done,  Justice  Ingraham  said  :  "  I  do  not  see  that  such  a 
course  was  in  any  way  necessary.  The  Code,  section  121, 
provides  for  such  a  case,  and  authorizes  the  court  to  order 
the  action  to  be  continued  by  his  successor  in  interest. 
The  action  is  to  be  continued — to  proceed — not  to  go  back 
and  repeat  what  had  been  done,  but  to  be  continued. 
If  the  successor  had  been  made  defendant,  he  might  have 
claimed  the  right  to  put  in  an  answer  and  defend,  but 
the  plaintiff  could  do  no  such  thing;  by  coming  in  as 
plaintiff,  he  assumes  all  the  former  plaintiff's  acts,  admits 
the  proceedings  previously  taken  to  be  correct,  and 
adopts  them  as  his  own,  and  by  proceeding  he  is  estopped 
from  afterwards  denying  the  regularity  of  the  judgment 
and  subsequent  proceedings.  There  are  other  reasons 
why  it  was  not  necessary  to  proceed  anew.  The  judg- 
ment of  partition  and  sale  was  perfect  before  the  death. 
The  rights  of  the  parties  thereafter  were  not  in  the  land, 
but  in  the  proceeds.  Whenever  the  plaintiff's  share 
vested,  the  partition  was  necessary,  and  the  interest  at- 
tached to  the  money,  the  proceeds  of  the  sale,  rather 
than  to  the  land.  The  same  sale  and  partition  must  be 
made  as  before,  and  the  only  difference  would  be  in  the 
distribution  of  the  share  of  the  deceased  party,  which 
would  be  regulated  on  motion.  I  am  of  the  opinion  there 
was  no  irregularity  in  the  proceeding,  and  that  the  pur- 
chaser should  complete  his  purchase."  * 

6  Thwing  V.  Thwing,  18  How.  Pr.  458  ;  referring  to  N.  Y.  Code 
of  Pro.  (Old  Code)  g  121.     See  9  Abb.   Pr.  323. 


392  THE    LAW    OF    PARTITION. 

In  one  case  decided  by  the  Court  of  Appeals  of  New 
York  the  facts  are  briefly  set  forth  as  follows  :  "  C, 
plaintiff's  husband,  conveyed  certain  premises  to  his 
brother  G.;  plaintiff  did  not  join  in  the  deed.  After  the 
death  of  G.,  C,  as  one  of  his  heirs,  brought  an  action  for 
partition  of  the  premises  ;  plaintiff  was  made  a  party 
defendant.  The  complaint  alleged  that  she  claimed  an 
inchoate  right  of  dower  in  the  premises  because  she  had 
not  signed  said  deed,  and  that  each  undivided  portion  was 
subject  thereto.  The  summons,  with  notice  of  object  of 
action,  was  served  upon  her.  She  did  not  appear.  Final 
judgment  made  no  provision  for  her  dower.  Upon  sale 
under  said  judgment  defendant  became  the  purchaser. 
In  an  action  to  recover  dower,  held,  that  judgment  in 
the  partition  suit  was  a  bar  ;  that  it  was  the  intent  of  the 
provisions  of  the  Revised  Statutes  in  reference  to  parti- 
tion (2  R.  S.  318,  section  5,  et  seq,)  to  cut  off  the  incho- 
ate right  of  dower  of  any  party  to  a  partition  suit,  as  a 
general  rule  ;  that  if  the  position  was  tenable,  that  the 
claim  for  dower,  being  an  adverse  one  accruing  before 
the  title  of  the  tenants  in  common,  could  not  be 
determined  in  the  partition  suit,  it  should  have  been  pre- 
sented in  some  form  in  that  action  ;  and,  having  failed  to 
do  so,  this  plaintiff  could  not  claim  in  another  action  that 
she  was  unlawfully  deprived  of  her  dower  right."  C.  died 
before  the  entry  of  the  decree.  The  Court  of  Appeals 
said  that  her  death  could  not  affect  the  rights  of  the  pur- 
chaser, so  far  as  this  action  was  concerned;  that  it  could 
only  be  considered  upon  application  to  the  court  in  the  par- 
tition suit.'  In  this  action  the  court  had  jurisdiction  of  the 
subject  matter  and  over  the  parties,  and  the  decree  was 

7  Jordan  v.  Van  Epps,  85  N.  Y.  427,  ante. 


ABATEMENT.  393 

entered  in  due  form  after  the  death  of  C,  and  it  does  not 
appear  that  anything  was  done,  so  far  as  the  action  is 
concerned,  in  relation  to  his  death,  or  any  question 
raised  until  after  the  decree  of  sale  had  been  entered.  If 
any  ground  for  complaint  existed  by  reason  of  this  de- 
fault, it  should  have  been  presented  in  the  partition  case 
by  an  application  to  the  court.  Not  having  been  pre- 
sented, it  was  not  a  proper  subject  for  consideration  by 
the  appellate  court. 

Where,  after  the  expiration  of  the  time  to  answer  by 
one  defendant,  and  before  putting  in  an  answer,  that 
defendant  dies,  and  the  action  is  continued  without 
making  his  heirs  or  devisees  parties,  the  subsequent  pro- 
ceedings are  void  as  to  the  interest  of  such  deceased 
defendant,  even  though,  after  the  sale,  such  heirs  or 
devisees  appeared  upon  various  motions  in  the  case.'  The 
case  of  Requa  v.  Holmes  was  again  reviewed  by  the 
Court  of  Appeals  in  1863,  and  there  it  was  decided  that 
it  was  no  estoppel  of  the  heirs,  or  any  ratification  by 
them  of  the  sale,  that,  upon  the  petition  of  the  repre- 
sentative of  their  ancestor's  grantor,  assuming  to  act  also 
in  their  behalf,  a  portion  of  the  proceeds  of  the  sale  were 
applied  to  the  payment  of  a  judgment  against  such 
grantor  ;  nor  that,  upon  the  consent  of  one  assuming  to 
act  as  their  solicitor,  a  portion  was  invested  as  a  dower 
fund  for  the  widow  of  the  grantor  ;  nor  that,  after  the 
death  of  the  widow,  and  pending  their  action  to  recover 
the  premises,  the  heirs  received  their  proportion  of  the 
funds  so  invested.  This  was  no  election  to  take  the 
money  instead  of  the  land.'     Where  one  of  several  ten- 

8  Requa  v.  Holmes,  16  N.  Y.  193. 

^  26  N.  Y.  338  ;  reversing  19  How.  Pr.  430.    See  Waring  v. 
Waring,  7  Abb.   Pr.  472. 


$94 


THE    L.\W    OF    PARTITION". 


ants,  in  partition,  dies  pending  the  action,  all  that  is  ne- 
cessarj'  to  put  the  case  in  the  position  to  proceed  is  to 
obtain,  \rithin  a  year  \:  rder,  under  section  121  of  the 
Code  (Old  Code.  :  .  .:  :  action  be  continued  against 
those  who  have  5  : : . .  _^  .  .e  interest  of  the  deceased 
part}-.  It  is  usual  to  give  notice  of  such  appUcation  ;  but 
where  the  surviving  defendants  have  no  interest  in  the 
action,  and  would  have  no  right  to  resist  a  motion  for  a 
supplemental  complaint,  notice  is  unnecessarj-.  Where 
such  application  is  made  within  a  year  after  the  death  of 
the  part}%  a  supplemental  complaint  is  unnecessary/'  In 
a  partition  suit,  where  the  original  jjarties  to  the  suit 
admit  their  several  titles  to  the  property  by  their  plead- 
ings, if  one  of  them  dies  and  the  suit  is  revived  against 
his  heirs  at  law  by  default,  the  court  may  declare  the 
rights,  titles  and  interests  of  the  several  parties  without 
a  reference  as  to  the  title,  and  without  requiring  the 
complainant  to  exhibit  proof  of  the  same  or  an  abstract 
of  the  conveyances  by  which  the  title  is  held."  Where  a 
partition  suit  abates,  and  new  parties  are  brought  before 
the  court  upon  the  revi\^  of  the  suit,  a  new  reference 
will  be  necessary  to  ascertain  their  rights,  before  sale  can 
be  decreed." 

It  is  claimed  that  the  case  last  cited  has  been  reversed. 
but  there  is  nothing  in  the  statutes  referred  to, 
or  in  any  decisions  that  hav^e  been  made,  that  would 
indicate  that  there  was  any  reversal  upon  the 
decision  of  the  court  wherein  defendant  claims  that  a 
new  reference  will  be  necessary  to  ascertain  the  rights 

i®  Gordon  v.  Sterling.  13  How.  Pr.  435.     See  Coon  :.  Knapp, 
Id.  175  ;  Green  v.  Bates,  7  Id.  296^ 

11.  Wilde  V.  Jenkins.  4.  Paige,  48 1. 

12  Reynolds  v.  Reynolds,  5  Paige,  161. 


ABATEMENT.  395 

before  a  sale  of  the  premises  can  be  decreed.  It  is 
a  matter  of  common  sense  that  if  new  parties  are 
brought  in  by  reason  of  the  death  of  one  of  the  parties  to 
the  action,  the  new  parties  being  brought  in  because  of 
an  interest  inherited  by  them  in  and  to  that  portion  of 
the  premises  owned  by  their  ancestor  as  tenant  in  com- 
mon, that  their  rights,  though  inherited  from  him,  being 
somewhat  different  from  his  rights,  they  owning  in  com- 
mon that  of  which  he  died  seized,  a  new  reference 
would  be  necessary,  and  would  be  the  only  means  to 
ascertain  their  interests  in  the  preniises,  so  that  such  in- 
terests could  be  properly  set  forth  in  the  interlocutory 
judgment. 


CHAPTER  XXVII. 

GUARDIANS     OF     INFANTS,     COMMITTEES    OF   LUNATICS, 
IDIOTS,  OR  HABITUAL  DRUNKARDS. 

The  conveyance  of  property  made  by  a  person  not  of 
sound  mind,  and  who  has  been  so  declared,  and  a  guard- 
ianship or  commiteeship  placed  over  him,  is  void.  Such  a 
conveyance  cannot  be  sustained  by  the  court,  because  it 
is  an  act  of  a  human  being  who  did  not  know  what  he 
was  doing,  and  therefore,  not  his  voluntary  act  and  deed, 
it  having  been  done  while  he  was  under  the  disability  of  be- 
ing of  unsound  mind,  and  a  decree  to  that  effect  having 
been  entered  which  was  a  warning  to  all  persons  that  his 
acts  and  business  transactions  had  no  force  and  were  void.' 

In  some  instances  the  deed  of  an  idiot,  or  an  insane 
person,  who  has  not  been  so  declared  by  the  court,  and 
not  in  the  custody  of  the  court,  and  not  being  under  a 
guardianship  by  having  a  committee  appointed  over  him, 
passes  a  seizin,  and  is  regarded  as  voidable  only,  and 
not  void.  ^  In  New  York  and  Pennsylvania  a  deed  given 
by  such  a  person  is  void,  and  in  New  Jersey  it  is  only 
voidable.  '      The  act    of  an   infant    is  regarded  by    the 

1  Wait  V.  Maxwell,  5  Pick.  217  ;  Rannells  v.  Gerner,  80  Mo. 
474  ;  Pearl  v.  McDowell,  3  J.  J.  Marsh.  658. 

2  Griswold  v.  Butler,  3  Conn.  231. 

3  Allis  V.  Billings,  6  Met.  415  ;  Arnold  v.  Rich  Iron  Works,  i 
Gray,  434;  Howe?7.  Howe,  99  Mass.  98  ;  Eaton  v.  Eaton,  37  N.J. 
L.  108.     See  5  Pick.  217 ;  9  N.  Y.  45 ;  9  Wall.  626 ;  83  Ind.  18. 

[396J 


GUARDIANS,  ETC,  397 

court  as  analogous  to  that  of  an  idiot  or  lunatic, 
and  the  deeds  made  by  infants  may  be  avoided  as  well 
against  the  grantees  of  their  grantees  as  the  infant's 
grantees  themselves.  *  It  is  often  difficult  for  the  court 
to  define  what  degree  of  capacity  in  the  one  selling  the 
property  is  sufficient  to  enable  him  to  make  a  proper 
valid  sale, — that  is,  a  sale  that  is  not  void  or  voidable. 
The  law  knows  no  such  thing  as  partial  insanity  in  deal- 
ing with  the  property  of  insane  persons,  and  the  phrase 
"  partial  insanity  "  is  something  that  has  yet  to  become 
a  legal  term,  to  have  any  effect  so  far  as  concerns 
the  property  or  estate  of  an  idiot.  Provisions  are  made 
for  the  appointment  of  a  committee  over  the  person  and 
property  of  an  idiot,  lunatic,  or  habitual  drunkard,  thus 
placing  the  person  so  under  disability  under  the  guard- 
ianship of  the  court,  the  committee  or  guardian  appointed 
by  the  court  being  its  officer  and  its  agent  as  to  the 
estate  of  the  person  thus  under  disability.  Of  course, 
when  the  court  shall  have  stepped  in  and  placed  such 
idiot,  lunatic,  or  habitual  drunkard  under  its  guardianship, 
then  it  is  easy  for  the  court  to  draw  the  line  that  all 
dealings,  transactions  and  conveyances  by  such  person, 
while  so  under  the  guardianship  of  the  court,  are  void  : 
but  when  that  guardianship  does  not  exist,  then  the  court 
must  draw  the  line  from  the  circumstances  and  condi- 
tions governing  the  case.  A  general  finding  of  insanity 
appointed  by  a  commission  for  that  purpose  does  not  of 
itself  avoid  a  deed.  ^  There  must  be  other  circumstances 
connected  with  the  case  than  the  mere  findings  of  the 
commission  to  make   the  deed    illegal.      The  law  seems 

*  Van  Deusen  v.  Sweet,  51  N.  Y.  384;  Rogers  v.  Blackwell,  49 
Mich.  192. 

5  Jones  z/.  Hughes,  15  Abb.  N.  C.  141. 


39S  THE    LAW    OF    PARTITION. 

to  be  settled  that  ordinarily  a  deed  made  by  an  infant  is 
not  void,  but  merely  voidable.  *  Deeds  executed  by  in- 
fants sometimes  are  void,  and  at  other  times  voidable. ' 

There  are  not  a  great  many  cases  or  authorties  in  re- 
gard to  the  partition  of  property,  where  one  of  the  co-ten- 
ants of  the  property  is  a  lunatic,  though  there  are  some. 
The  fact  is  recognized  that  although  a  person  may  be  a 
lunatic,  and  that  a  guardian  or  committee  has  been  ap- 
pointed over  him  and  his  property  by  the  court,  the  title 
to  his  property,  whether  such  be  in  co-tenancy  or  not, 
is  vested  in  such  lunatic,  and  the  legal  title  thereto  can 
in  no  way  be  affected  by  any  suit  at  law  or  in  equity,  un- 
less such  lunatic  is  properly  made  a  party  to  the  action.  ' 
A  lunatic  or  idiot,  or  a  person  under  disability  by  reason 
of  infancy,  weakness  of  mind  or  habit,  and  under  the 
guardianship  of  the  court,  must  be  made  a  defendant  in 
the  action  of  partition,  the  same  as  if  he  were  of  sound 
mind  ;  and  the  allegations  in  the  complaint  pertaining  to 
his  co-tenancy   must  be  to  the  same  effect  as  if  he  were 

6  2  Blacks.  Comm.  291  ;  Whitney  v.  Dutch,  14  Mass.  457  ; 
Tucker  2/.  Moreland,  10  Pet.  58;  Roof  v.  Stafford,  7  Cow.  180; 
Boston  Bank  7^.  Chamberlin,  15  Mass.  220;  Bool  7/.  Mix,  17  Wend. 
119  ;  French  v.  McAndrew,  61  Miss.  187  ;  Bingham  v.  Barley,  55 
Tex.  281  ;  Kline  v.  Beebe,  6  Conn.  494  ;  Drake  v.  Ramsay,  5  Ohio, 
252. 

7  Co.  Lit.  389. 

'^  On  questions  touching  conveyances  made  by  idiots,  luna- 
tics, habitual  drunkards,  or  infants,  the  following  cases  may  be  of 
interest,  though  not  deemed  by  the  author  to  be  of  sufficient 
interest  to  be  cited  in  full  by  giving  a  full  text  of  the  decisions 
made  by  the  court.  4Harring.  75  ;  8  Ind.  no;  9  Vt.  368  ;  53  Me.  453; 
6  Gray.  279;  15  Ohio,  156:44  Ark.  293;  60  Miss.  420;  71  Ala.  248  ;  83 
Ind.  382  ;  16  N.  H.  385  ;  76  Ala.  343  ;  57  Tex.  482  ;  11  Johns.  539  ;  9 
Wall.  618  ;  6  Conn.  506  66Ga.  179;  78  Va.  584  ;  102U.  S.  300: 
93  Ind.  423;  7  Allen,  i  ;  10  Pet.  75  ;  53  Mich.  15;  81  Mo.  221. 

8  Gorham  v.  Gorham,  3  Barb.  Ch.  41. 


GUARDIANS,   ETC.  399 

not  under  such  disability,  together  with  the  further  alle- 
gation setting  forth  concisely  and  fully  the  disability  of 
mind  or  habit  then  resting  upon  such  co-tenant. 
Where  a  bill  or  complaint  for  partition  shall  be  filed 
against  a  person  of  weak  intellect  and  he  answered  by 
guardian,  the  court  has  power  to  make  the  usual  order 
for  a  commission,  and  power  to  decree  the  usual  interlocu- 
tory judgment,  taking  into  consideration  the  mental 
condition  of  such  person  so  answering  by  guardian  or 
committee,  and  protecting  his  or  her  rights  throughout 
the  action.  ^ 

The  court  of  chancery  has  jurisdiction  to  appoint  a 
guardian  for  an  infant,  because  the  infant  is  the  ward  of 
the  court,  and  it  has  been  well  settled  that  in  the  appoint- 
ment of  that  guardian,  when  there  may  be  proper  reasons 
for  so  doing,  the  court  may  exclude  the  father  of  the 
infant  and  disregard  his  wishes."  In  a  suit  under  the 
English  partition  act  of  1868,  for  the  confirmation  of  a 
conditional  contract  for  the  sale  of  land,  to  which  the 
infant  plaintiff  and  the  infant  defendant  were  entitled  as 
co-heirs,  subject  to  the  dower  of  their  mother,  an  order 
was  made  confirming  the  conditional  contract,  and 
directing  a  sale,  and  the  decree  was  prefaced  by  a  recital 
that  a  sale  appeared  more  beneficial  than  a  division,  and 
that  the  infant  plaintiff  requested  such  sale.  Of  course, 
such  request  must  necessarily  be  made  upon  the  behalf  of 
the  infant  by  his  guardian  ai  litcjn  in  the  action."  When 
a  guardian  shall  have  been  appointed,  and  shall  have 
duly  qualified  to  the  satisfaction  of  the  court  appointing 

^  Heirs  of  Bryant  v.  Stearns,  16  Ala.  306;  Ilollingworth  z^. 
Sidebottom,  8  Sim.  620;  Freem.  on  Co-ten.  \  469. 

10  Wellesley  v.  Wellcsley,  2  Bligh  N.  S.  124 ;  i  Dow.  N.  S.  152. 

11  Grove  v.  Coniyn,  18  E.  R.  Eq.  357. 


400 


THE    LAW    OF    PARTITION. 


him,  it  is  his  duty,  as  soon  as  the  circumstances  of  the 
case  will  allow,  to  take  possession  and  control  of  the 
estate  of  his  ward,  wherever  it  may  be  and  whatsoever 
condition  it  may  be  in.  If  the  ward  be  a  co-tenant,  with 
an  action  pending  against  him  for  the  partition  of  the 
property  under  the  co-tenancy,  it  is  the  guardian's  duty  to 
act  in  the  case  for  the  infant,  and  to  see  that  the  infant's 
interests  are  properly  cared  for.  It  is  the  general  idea  of 
equity  that  the  appointment  of  a  guardian  means  protec- 
tion to  the  one  over  whom  the  guardian  is  appointed  ; 
thereafter  it  becomes  the  duty  of  the  guardian  to  take 
into  his  possession  and  under  his  control  the  rights,  prop- 
erty and  interests  of  his  ward.'" 

The  Revised  Statutes  of  New  York  provide,  that 
whenever  it  shall  appear  satisfactorily,  by  due  proof,  or 
when  it  shall  appear  by  the  report  of  a  referee  to  the 
Supreme  Court,  that  a  minor  holds  real  estate  in  joint 
tenancy,  or  as  tenant  in  common,  or  in  any  other  manner, 
so  that  he  would  be  entitled,  upon  proper  application  to 
the  court,  to  partition,  or  so  that  he  could  be  made  a 
party  to  a  suit  in  partition,  and  that  the  interest  of  the  in- 
fant is  such,  or  the  interest  of  any  other  person  concerned 
in  the  property  is  such,  that  partition  of  such  estate 
should  be  made,  the  court  may  direct  and  authorize 
the  general  guardian  of  such  infant  to  agree  to 
a  division  of  the  land,  or  to  a  sale  of  the  land,  or  of  such 
part  of  the  same  as,  in  the  opinion  of  the  court,  would  be 
incapable  of  being  partitioned,  or  as  shall  be  most  for  the 
interest  of  the  infant  to  be  sold."  The  court  will  not 
authorize  a  guardian  to  join  in  a  sale,  except  on  the  report  of 


12  Micou  V.  La  Mar,  7  F.  R.  180. 

13  3N.Y.  R.  S.  6ed.  §  loi. 


GUARDIANS,   ETC.  4OI 

the  master  that  such  sale  is  necessary  and  proper  ;  and 
the  guardian  must  give  security  for  the  faithful  perform- 
ance of  his  trust  on  such  sale,  and  to  bring  the  proceeds 
of  the  infant's  share  into  court,  or  to  invest  and  account 
for  the  same.  If  a  co-tenant  wishes  to  buy  the  share  of 
an  infant  in  an  estate  which  cannot  be  divided,  and  such 
co-tenant  is  willing  to  pay  a  fair  value  for  the  same,  it  is 
the  duty  of  the  guardian  to  apply  to  the  court  for  liberty  to 
sell,  under  the  article  of  the  Revised  Statutes  relative  to 
the  sale  and  disposition  of  infant's  land.  It  is  ample 
ground  to  authorize  a  sale  in  such  cases,  that  the  land  is 
held  in  common  with  adults,  and  that  the  value  of  the 
estate  is  small,  as  compared  with  the  expense  of  a  parti- 
tion suit,  to  which  it  must  be  subjected,  unless  a  sale  of 
the  infant's  portion  can  be  made." 

It  is  the  duty  of  the  guardian  in  such  matters  to. 
report  to  the  court,  on  oath,  the  partition  or  sale  so  made 
by  him,  and  if  the  same  shall  be  approved  and  confirmed 
by  the  court,  an  order  shall  be  entered  authorizing  such 
guardian  to  execute  conveyances  of  the  right  of  such 
infant  to  such  part  of  the  said  estate  as  shall  have  been 
sold,  to  the  purchaser  thereof,  or  to  execute  releases  of  the 
right  of  such  infant  to  such  part  of  the  said  estate 
as  in  the  said  division  falls  to  the  shares  of  the  other- 
joint  tenants  or  tenants  in  common.  The  deed  so  given  by 
the  guardian  is  as  valid  and  effectual,  and  conveys  the- 
share  and  part  of  such  infant,  the  same  as  if  it  had  been 
executed  after  the  infant  shall  have  arrived  at  full  age. 
And  the  statute  considers  and  says,  in  substance,  that  in 
case  of  the  sale  of  the  property,  or  any  part  of  it,  the 
infant   shall   be  deemed   the  ward  of  the  court,  and  such 

1*  In  26  re  Congdon,  2  Paige,  566. 
26 


402  THE    LAW    OF    PARTITION. 

order  shall  be  made  and  taken  as  the  court  may  direct,  for 
securing,  investing  and  applying  the  proceeds  of  the  sale, 
the  court  requiring  security  from  the  guardian  for  that 
purpose.  If  the  infant  be  a  married  woman,  the  court 
may,  upon  proper  petition,  appoint  her  husband  as  her 
guardian.  The  husband,  when  appointed  as  such  guar- 
dian, is  subject  to  the  same  rules  and  regulations  as  any 
other  person  that  might  have  been  appointed  in  his 
stead.'^ 

When  it  appears  to  the  satisfaction  of  the  court,  upon 
the  application  of  a  committee  of  a  lunatic,  idiot,  or  per- 
son mentally  incapable  of  managing  his  affairs,  holding 
real  estate  as  co-tenant  with  others,  or  in  such  manner 
as  to  authorize  his  being  made  a  party  to  a  suit  in  par- 
tition, that  the  interest  of  such  idiot,  lunatic,  or  other 
person,  or  of  any  of  the  parties  interested  in  such  estate, 
requires  partition,  such  application  shall  be  sent  to  a  ref- 
eree to  inquire  into  and  report  upon  the  facts  and  circum- 
stances. The  court,  upon  the  coming  in  of  the  report, 
and  a  hearing  and  examination  of  the  matter,  may  author- 
ize the  committee  of  such  incapable  person  to  agree  to 
a  partition  in  the  same  manner  in  which  the  guardian  of 
an  infant  may  agree  to  a  partition,  and  may  sell  or  release 
the  infant's  portion  in  the  premises,  and  the  deed  of  con- 
veyance or  release  so  made  is  as  binding  upon  such  in- 
capable person  as  if  the  same  were  made  by  him  when  of 
full  age  and  of  sound  mind  ;  but  it  is  necessary  in  such 
cases  that  there  shall  be  a  full  and  fair  consideration  got 
for  the  interest  of  the  infant  or  incapable  person  in  the 
lands.  '* 

15  3  N.  Y,  R.  S.  6  ed.  p.  597,  §§  102,  103,  104 ;  N.  Y.  Laws  of 
1830,  c.  320,  §  47  ;  New  York  Laws  of  1814,  g  2,  p.  129. 

16  3  N.  Y.  R.  S.  ^^  105,  106,  107. 


GUARDIANS,   ETC.  4O3 

This  brings  us  to  the  practice  in  New  York  state  as 
laid  down  in  its  Code  of  Civil  Procedure,  which  is  some- 
what similar  to  the  practice  and  rules  of  the  New  York 
Revised  Statutes,  having  been  to  a  certain  extent  drafted 
therefrom.  The  Code  gives  the  guardian  of  an  infant,  or 
the  committee  of  an  idiot,  lunatic,  or  habitual  drunkard, 
who  is  a  co-tenant  with  others  in  real  estate,  the  right  to 
make  partition  of  the  property  so  held  in  common.  The 
application  for  the  privilege  to  do  so  upon  behalf  of  such 
infant  or  incapable  person,  may  be  made  to  the  supreme 
court  or  to  the  county  court  of  the  county,  or  to  a  superior 
city  court  of  the  city,  wherein  the  property  sought  to  be 
partitioned  is  situated.  ^  The  application  made  to  the 
court  having  proper  jurisdiction  must  be  by  a  petition, 
which  petition  must  describe  the  real  property  proposed 
and  to  be  partitioned  :  it  must  state  facts,  so  that  the  court 
may  know  the  rights  and  the  interests  of  the  several 
owners  in  the  property  :  and  if  a  partition  of  the  property 
is  proposed  instead  of  a  sale,  such  petition  must  state 
specifically  the  particular  division  proposed  to  be  made. 
The  petition  must  be  verified,  as  required  by  the  Code 
for  the  verification  of  other  petitions.  If  the  court  deems 
best,  it  may  order  that  notice  of  the  application  for  author- 
ity to  agree  to  a  partition  of  such  real  estate,  shall  be 
given  to  such  persons  as  the  court  thinks  proper.  ° 

''  Where  an  infant,  idiot,  lunatic,  or  habitual  drunkard,  holds 
real  property,  in  joint  tenancy  or  in  common,  the  general  guard- 
ian of  the  infant,  or  the  committee  of  the  idiot,  lunatic,  or  habit- 
ual drunkard,  may  apply  to  the  supreme  court  or  to  the  county 
court  of  the  county,  or  to  a  superior  city  court  of  the  city,  where- 
in the  real  property  is  situated,  for  authority  to  agree  to  a  parti- 
tion of  the  real  property,     N.  Y.  Code  Civ.  Pro.  §  1590. 

c  Such  an  application  must  be  by  a  petition,  which  must  de- 
scribe the  real  property  proposed  and  to  be  partitioned  ;  must 
state  the  rights  and  interests  of  the  several  owners  thereof;  must 
specify  the  particular  partition  proposed  to  be  made  ;    and  must 


404  THE    LAW    OF    PARTITION. 

If,  upon  due  inquiry  into  the  merits  of  the  application, 
the  court  having  a  right  to  make  an  order  of  reference 
for  that  purpose,  or  to  order  the  application  itself,  it 
should  be  in  the  opinion  of  the  court,  and  should  appear 
that  the  interests  of  the  infant,  idiot,  lunatic,  or  habitual 
drunkard  will  be  promoted  by  a  partition  of  the  premises 
so  held  in  common,  the  court  may  make  an  order  author- 
izing the  petitioner  to  agree  to  the  partition  proposed, 
and  in  the  name  of  the  person  so  incapable  of  agreeing,  to 
execute  and  deliver  releases  of  his  right  and  interest  in 
the  property.  ^  Such  releases  have  the  same  effect  and 
validity,  as  if  they  were  executed  by  the  person  in  whose 
behalf  they  were  actually  executed,  and  such  person  not 
having  the  disability  of  infancy  resting  upon  him,  or  be- 
ing incapable  of  so  executing  such  releases,  by  reason  of 
idiocy,  lunacy,  or  habitual  drunkenness.  ® 

be  verified  by  affidavit.  The  court  may  order  notice  of  the  appli- 
cation to  be  given  to  such  persons  as  it  thinks  proper.  N.  Y. 
Code  Civ.  Pro.  ^  1591. 

d  If,  after  due  inquiry  into  the  merits  of  the  application,  by 
a  reference  or  otherwise,  the  court  is  of  the  opinion  that  the  in- 
terests of  the  infant,  or  of  the  idiot,  lunatic,  or  habitual  drunkard 
will  be  promoted  by  the  partition,  it  may  make  an  order  author- 
izing the  petitioner  to  agree  to  the  partition  proposed,  and  in 
the  name  of  the  infant,  or  of  the  idiot,  lunatic,  or  habitual  drunk- 
ard, to  execute  releases  of  his  right  and  interest  in  and  to  that 
part  of  the  property  which  falls  to  the  shares  of  the  other  joint 
tenants  or  tenants  in  common.  The  court  may,  in  its  discretion 
for  the  furtherance  of  the  mterests  of  said  infant,  idiot,  lunatic, 
or  habitual  drunkard,  direct  partition  to  be  so  made  as  to  set  ofi 
to  him  or  them  his  or  their  share  in  common  with  any  of  the 
other  owners,  provided  the  consent  in  writing  thereto  of  such 
owners  shall  first  be  obtained.     N.  Y.  Code  Civ.  Pro.  §  1592. 

e  Releases  so  executed  have  the  same  validity  and  effect,  as 
if  they  were  executed  by  the  person  in  whose  behalf  they  are 
executed,  and  as  if  the  infant  was  of  full  age,  or  the  idiot,  lunatic, 
or  habitual  drunkard  was  of  sound  mind,  and  competent  to  man- 
age his  aflairs.     N.  Y.  Code  Civ.  Pro.  §  1593. 


GUARDIANS,  ETC.  4O5 

The  relation  of  parent  and  child  tends  rather  to  rebut 
than  to  raise  the  impHcation  of  a  contract.*'  To  maintain 
an  action  for  use  and  occupation,  a  contract  express  or 
implied  must  be  proved."  The  father,  as  guardian  by 
nature,  has  no  right  to  receive  the  rents  and  profits  of  his 
child's  lands.'^  It  could  not  well  be  assumed  that  the 
relation  of  landlord  and  tenant  would  exist  between  the 
father,  as  guardian  by  nature,  and  the  tenant  upon  the 
premises.  To  collect  rents  there  must  exist  the  relation 
of  landlord  and  tenant.'"'  The  father,  as  guardian  by 
nature,  might  receive  the  rents  and  profits  of  his  child's 
lands,  and  render  a  just  and  proper  account  for  the 
amount  received  by  him.  The  court,  as  a  matter  of  cus- 
tom and  usage,  could  approve  of  the  same  so  long  as  the 
interest  and  right  of  the  infant  child  had  been  protected. 
When  the  father  is  controlling  the  lands  as  a  tenant  in 
common  with  his  child,  his  receiving  the  rents  and 
accounting  therefor  in  such  case  would  have,  in  addition 
to  his  being  the  natural  guardian  of  his  child,  the  further 
element  in  favor  of  his  receiving  the  same,  he  being  a  co- 
tenant  with  his  child,  and  his  possession  being  the  pos- 
session of  the  infant  co-tenant,  the  court  would  naturally, 
where  the  father  and  children  were  living  harmoniously 
together,  sanction  the  receiving  of  the  moneys  by  the 
father,  being  rents  and  profits  belonging  to  the  children, 
providing  the  father  make  no  attempt  to  misappropriate 
such  funds. 

A  guardian  has  no  power  to  convey  the  interest  of  the 


17  Clarke  V.  Clarke,  2  N.  Eng.  213. 

18  Chamberlin  z/.  Donahue,  44  Vt.  57  ;  Moore  v.  Harvey,  50  Id. 
297. 

i'-*  Jackson  -u.  Combs,  7  Cow.  36  ;  Oakes  v.  Oakes,  16  111.  106, 
2«  Stacy  V.  Vt.  Cent.  R.  K.  Co.,  32  Vt.  551. 


406  THE    LAW    OF    PARTITION. 

ward  as  heir  at  law  in  the  land  without  an  order  of 
court.  A  deed  given  by  the  guardian,  without  authority 
of  the  court,  conveys  no  title,  especially  where  such  deed 
has  been  obtained  from  the  guardian  with  knowledge  of 
its  invalidity  and  induced  by  misrepresentations.'*  Such 
a  deed  would  not  take  from  the  infant  his  interest 
in  lands  held  by  him  as  tenant  with  others  ;  and  the 
court  would  have  a  right,  in  the  protection  of  such  equita- 
ble interest,  to  direct  that  he  might  partition  the  prem- 
ises by  suit  at  law,  and  that  he  have  the  full  benefit  of  his 
ownership  in  the  lands.  The  law  is  well  established  that 
a  sale  secured  by  fraud  and  misrepresentation  is  voidable 
at  the  option  of  the  vendor  •,''^  and  certainly  a  sale, 
procured  through  fraud  and  misrepresentation,  of  lands 
belonging  to  an  infant,  and  the  sale  made  not  in  con- 
formity with  the  rules  of  the  court,  the  parties  to  such 
sale  having  knowledge  of  the  non-conformance  to  such 
rules,  should  be,  and  is  absolutely  void.^  When  the  guar- 
dian or  committee  shall  have  completed  his  duty  in  see- 
ing to  the  interest  of  his  ward,  and  in  protecting  his 
rights  in  the  common  property,  it  then  becomes  his 
further  duty  to  account  for  and  pay  over  all  moneys 
of  his  ward  that  may  be  remaining  in  his  possession  ;  and 
his  duty  as  such  guardian  is  not  complete  until  he  shall 
have  done  so." 

The  New  York  practice  requires  that  suit  by  or 
against  infants  must  be  prosecuted  or  defended  by  a  guar- 
dian ad  litem,  and   not  by   next  friend  ;    and    the    court 

2^  Cooler  v.  Dearborn,  2  West.  R.  399. 

22  I  Hillard  Vend.  335. 

*  Females  are  of  age  at  eighteen  years  under  some  statutes. 
Kilgour  V.  Gockley,  83  III.  109  ;  Davis  v.  Hall,  92  111.  85. 

23  Merrells  v.  Phelps,  34  Conn.  109;  Bryant  7/.  Owen,  i  Kelly, 
3.55  ;  Scofield  v.  Churchill,  72  N.  Y.  565. 


GUARDIANS,   ETC.  407 

having-  jurisdiction  of  the  action  has  the  power  to  make 
the  appointment  of  the  guardian."  The  guardian  ad 
litein,  or  friend,  or,  in  case  of  an  idiot,  lunatic  or  habitual 
drunkard,  the  committee,  must  appear  in  court  upon 
behalf  of  his  ward  ;  and  such  appearance  must  become  a 
part  of  the  record  in  the  action. ='  It  is  proper  that  the 
court  should  require  that  the  person  appointed  to  repre- 
sent the  party  thus  under  disability  shall  be  a  responsible 
person  ;  and  in  cases  as  important  as  partition  cases, 
where  considerable  property  may  be  involved,  such  per- 
sons so  appointed  by  the  court  as  guardian  or  committee, 
should  be  responsible,  and  pecuniarily  liable  for  the  costs 
of  the  action.''  If  the  guardian  of  an  infant  plaintiff  is 
not  conducting  the  action  upon  behalf  of  his  ward  prop- 
erly, the  court  may  remove  him,  and  have  some  suitable 
person  appointed  in  his  place. ^' 

The  appointment  of  a  guardian  is  of  so  much  import- 
ance that  it  is  deemed  an  error  to  render  a  decree  without 
it,  or  upon  the  appearance  of  an  attorney  merely,  and  the 
decree  so  rendered  may  be  set  aside.'"  A  sale  of  lands  in 
partition  is  binding  upon  an  infant  if  the  judgment  order- 
ing it  was  regular.  But  when  it  appears  that  the  property 
of  infants  has  been  sacrificed  through  negligence  of  their 
guardians,  a  resale  may  be  procured,  full  indemnity  being 

24  Hoftailing  z/.  Teal,  11  How.  Pr.  188. 

25  Miles  V.  Boyden,  3  Pick.  213;  Jadson  v.  Blanchard,  3  Conn. 
579;  Heft  V.  McGill,  3  Penn.  St.  256. 

'^^  Cook  V.  Rawdon,  6  How.  Pr.  233  Dalrymple  v.  Lamb,  3  Wend. 
424  ;  Pearce  v.  Pearce,  9  Ves.  547. 

27  Fulton  V.  Rosevelt,  i  Paige,  178;  Hardy  v.  Scanlin.  i 
Miles,  87. 

28  McDonald  v.  McDonald,  3  W.  Va.  676;  Quigley  7/.  Roberts, 
44  111.  503;  Barber?/.  Graves,  18  Vt.  290;  Porter  v.  Robinson  3 
A.  K.  Marsh.  253;  White  v.  Albertson,  3  Dev.  241  ;  Taylor  t/. 
Rowland,  26  Tex   293  ;  Bloom  v.  Burdick,  i  Hill,  130. 


4o8  THE    LAW    OF    PARTITION. 

made  to  the  purchaser,  and  the  court  may  grant  an  order 
for  such  resale  on  its  own  motion.^'  Special  guardians  of 
infants  and  committees  of  persons  under  mental  disabil- 
ity ought  to  receive  for  their  services,  in  such  cases, 
a  proper  and  reasonable  compensation.  It  is  true  that 
their  right  to  such  compensation  does  not  accrue  until 
they  shall  have  fully  performed  their  duty.'"  Notwith- 
standing the  appointment  of  the  committee  of  the  person 
and  estate  of  a  lunatic,  the  property  remains  vested  in 
the  lunatic/"  The  duty  of  the  committee  of  the  lunatic 
or  of  the  guardian  of  the  infant  being  for  the  protection 
of  the  property  of  such  idiot  or  lunatic,  it  is  no  more 
than  equity  that  he  should  receive  compensation  for  such 
services  as  he  performs  in  protecting  the  rights  of  his 
ward  in  the  action. 

29  LeFevre  v.  Laraway,  22  Barb.  167. 

30  Matter  of  Will  of  Budlong,  i  Cent.  R.  286.    See  4  Paige,  85  ; 
7  Id.  521,  544. 

31  Smith  V.  Commissioner  of  Taxes,  i  Cent.  R.  289  ;  McKillip 
V.  McKillip,  8  Barb.  552  ;  Lane  v.  Schermerhorn,  i   Hill,  97. 


CHAPTER  XXVIII. 

THE  PEOPLE  AS  PARTIES  TO  THE  ACTION.      RECORDING 
COPY  OF  JUDGMENT. 

The  people  may  become  tenants  in  common  with 
others  in  various  ways.  The  State  may  as  a  matter  of 
necessity,  for  the  purpose  of  protecting  its  own  interest, 
or  for  the  purpose  of  gaining  property  for  purposes  essen- 
tial to  the  business  of  the  State,  purchase  the  interest  of 
a  tenant,  and  thereby  the  co-tenancy  extends  to  the 
State,  and  the  people  of  the  State,  as  such,  own  in-  fee  the 
interest  of  the  co-tenant  whose  rights  and  title  the  State 
had  purchased.  The  law  of  escheat  is  such  that  the  title 
to  land  may  by  escheat  pass  to  the  commonwealth.  Es- 
cheat is  laid  down  among  the  sources  of  title  to  lands 
mentioned  by  some  of  the  most  able  authors.  Escheat 
has  an  ancient  definition,  like  this  :  it  signifies  in  a  legal 
sense  any  lands  or  other  profits  that  fall  to  a  lord  within 
his  manor,  by  way  of  forfeiture,  on  the  death  of  his  tenant 
dying  without  heir.  It  is  an  accidental  reverting  of  lands 
to  the  original  owner.  All  estates  which  so  revert,  are 
called  an  escheat,  which  in  English  laws  are  declared  to 
be  strictly  feudal,  and  to  import  the  extinction  of  tenure.' 
In  the  United  States,  the  State  or  the  commonwealth 

1  Wright  Ten.  115,  117. 

[409] 


4IO  THE    LAW    OF    PARTITION. 

of  the  State  steps  in,  and  takes  the  place  of  the  feudal 
lord,  by  virtue  of  the  sovereignty  of  the  State,  and  by 
virtue  of  its  being  the  original  proprietor  of  all  lands  now 
held  within  its  jurisdiction.^  One  might  say  that  the 
Federal  Government  was  an  original  proprietor  over  all 
the  lands  now  held  within  the  jurisdiction  of  the  several 
States  of  the  Union  ;  but  in  the  forming  of  the  Territories 
into  States,  and  in  the  recognition  of  the  thirteen  colonies 
as  States  by  the  Federal  Constitution,  and  by  all  acts  on 
the  part  of  the  Federal  Legislature,  the  United  States 
releases  all  its  title,  right  and  interest  in  and  to  the  sov- 
ereignty of  the  public  within  the  boundaries  of  each  State. 
This  release  upon  the  part  of  the  general  government  was 
a  release  for  all  time  to  come  of  the  rights  then  held  by 
the  State,  or  of  any  expected  or  future  rights  by  reason 
of  the  law  of  escheat,  by  a  release  by  the  government  to 
the  respective  States  of  all  rights  to  the  land  that  the 
government  then  had,  or  might  have  so  long  as  those 
States  remain  loyal  to  the  Union,  thereby  placing  the 
State  in  the  position  of  the  original  holder  and  owner 
of  the  title  to  the  public  lands. 

Different  States  have  different  rules  and  regulations 
made  by  statute  in  regard  to  the  law  of  escheat.  In 
some  States  lands  cannot  descend  from  an  alien  to  his 
heirs,  as  only  citizens  are  supposed  to  have  the  right  of 
ownership  in  land.  In  case  of  the  death  of  an  alien  to 
whom  has  passed,  and  in  whom  title  is  resting  at  his 
death,  the  land  covered  by  such  title  becomes  the  property 
of  the  State  by  escheat.  If  one  dies  without  heirs,  then 
there  is  no  one  to  inherit  and  no  one  to  which  the  title  of 
lands  will  pass.     In  such  a  case,  the  land  so  held  by  the 

2  4  Kent  Comm.  424. 


PARTIES  ;    RECORDING.  4 1 1 

person  dying  without  heirs  passes  by  escheat  to  the  State. 
It  is  considered  to  be  the  universal  rule  of  civilized  society 
that  when  the  deceased  owner  has  left  no  heirs,  the  title 
to  his  lands  should  be  in  the  public  and  be  at  the 
disposal  of  the  government.^  Where  lands  escheat  to  the 
State,  through  defect  of  heirs  of  the  person  dying  seized, 
the  State  may  grant  the  same,  without  actual  entry  or 
inquisition  ;  even  though  it  be  held  adversely  by  one 
claiming  title  thereto.  Such  a  grant  will  pass  the  title  of 
the  State,  to  the  grantee,  and  passes  to  the  grantee  the 
right  of  the  State  to  institute  and  prosecute  a  suit  for  the 
recovery  of  land.* 

The  objection  that  there  must  be  an  ent^y  upon  the 
lands  escheated  by  the  State,  is  founded  upon  the  English 
rule  to  the  effect  that  the  king  cannot  enter  upon,  or 
grant,  the  land  until  his  title  is  found  by  inquisition.  This 
rule  seemed  to  have  been  a  necessity  by  certain  English 
statutes."  Such  rule  does  not  prevail  here.  In  some 
States,  especially  in  New  York,  the  Revised  Statutes 
recognize  the  right  of  the  State  to  take  immediate  pos- 
session of  the  lands  which  would  otherwise  be  in  abeyance 
through  the  death  of  the  last  tenant  in  fee  without 
heirs. 

The  New  York  Revised  Statutes  provide  that  the  peo- 
ple of  that  State,  in  their  right  of  sovereignty,  are  deemed 
to  possess  the  original  and  ultimate  property  in  and  to  all 
lands  within  the  jurisdiction  of  the  State  ;  and  all  lands, 
the  title  of  which  shall  fail,  from  the  defect  of  heirs,  shall 

3  Brown  Civil  Law,    250;   i    Swift   Dig.    156;  2  Bl.  244,  245  ;  9 
Rich  Eq.  440  ;  5  Cal.  373  ;  4  Md.  Ch.  167  ;  48  Tex.  567  ;  86  Pa.  284. 
*  McGaugha]  v.  Ryan,  27  Barb.  376. 
5  Westminster  1.  ch.  24;  18  Henry  VI.  c.  6. 


412  THE    LAW    OF    PARTITION. 

revert  or  escheat  to  the  people.*  Lands  held  by  the 
State,  and  gained  by  them  by  virtue  of  the  laws  of  escheat, 
are  subject  to  the  same  trusts,  incumbrances,  charges, 
rents  and  services,  to  which  they  would  have  been,  had 
they  descended  to  heirs.  Such  land,  and,  in  fact,  all 
lands  within  the  State  are  declared  to  be  allodial,  so  that 
the  entire  and  absolute  property  therein  is  vested  in  the 
owners,  subject  only  to  its  liability  to  escheat  to  the  State. 
Feudal  tenures  being  absolutely  abolished,  thus  it  can  be 
seen  that  when  land  is  owned  by  a  number  of  co-tenants, 
or  owned  in  such  a  way  that  the  share  of  one  co-tenant 
becomes  vested  in  the  State  at  his  death,  or  that  when- 
ever the  commonwealth  or  State  becomes  a  co-tenant 
with  others  in  certain  lands,  that  the  State  is  subject  to 
the  same  rules  and  regulations  pertaining  to  the  partition 
of  such  lands,  as  if  it  were  an  ordinary  individual  ; 
and  the  lands  so  owned  partly  by  an  individual,  and 
partly  by  the  State,  as  tenants  in  common,  are  subject  to 
the  same  rules  as  other  lands  owned  in  co-tenancy  ;  and 
the  court  has  the  same  jurisdiction  over  them  both  legal 
and  equitable  in  cases  of  partition.  The  people  of  the 
State  may  be  made  party  defendant  to  an  action  in  parti- 
tion of  real  property,  the  same  as  any  private  person. 
Where  the  State  shall  be  made  a  party  defendant  as 
aforesaid,  the  summons  must  be  served  upon  the  attorney- 
general,  and  it  is  his  duty  to  appear  in  the  action  on  be- 
half of  the  people.' 

6  3  N.  Y.  R.  S.  7  ed.  2162,  §  i ;  People  v.  Van  Rensselaer,  9  N. 
Y.  319  ;  Wadsworth  v.  Buffalo  Hydraulic  Association,  15  Barb. 
94;  People  V.  Van  Rensselaer,  ante ;  8  Barb.  189. 

"  The  people  of  the  State  may  be  made  a  party  defendant  to 
an  action  for  the  partition  of  real  property,  in  the  same  manner 
as  a  private  person.  In  such  a  case,  the  summons  must  be  served 
upon  the  attorney-general,  who  must  appear  in  behalf  of  the  peo- 
ple.   N.  Y.  Code  Civ.  Pro.  §  1594. 


parties:    recording.  413 

Lands  located  in  two  or  more  counties  may  be  the 
subject  of  one  action  of  partition  where  the  parties  are  the 
same.  In  such  a  case,  an  exempHfied  copy  of  the  judg- 
ment-roll, or  of  the  final  judgment,  in  the  action,  may  be 
recorded,  in  the  office  for  the  recording  of  deeds,  in  any 
county  in  which  such  land  affected  by  the  judgment  in  the 
action  is  situated.^  The  former  distinction  between  de- 
crees in  equity  and  judgments  in  actions  at  common  law 
has  not  been  abolished,  but  is  inherent  in  the  two  systems. 
In  a  suit  for  partition  the  rights  of  the  parties  are  fixed 
and  settled  by  the  final  decree,  and  not  by  the  enrollment 
thereof  The  delay  of  the  clerk  in  entering  the  decree  of 
the  court  in  equity  in  the  judgment-book  will  not  affect 
the  validity  of  the  judgment.'  A  transcript  of  a  docket 
of  judgment  should  be  a  copy  of  such  docket,  and  in 
order  to  make  it  the  duty  of  a  county  clerk  to  whom  such 
transcript  is  presented  to  file  it  and  docket  the  judgment 
in  his  office,  it  must  be  attested  in  such  form  as  to  show, 
by  some  intelligent  statement  of  the  fact  in  the  attesta- 
tion clause,  that  the  instrument  to  which  such  attestation 
is  appended  is  a  transcript  of  the  judgment  docket  kept 
in  the   office  of  the  clerk   signing  the  attestation  clause.' 

^  An  exemplified  copy  of  the  judgment-roll,  or  of  the  final 
judgment,  in  an  action  (or  partition,  may  be  recorded,  in  the  office 
for  recording  deeds,  in  each  county  in  which  any  real  property 
afiected  thereby  is  situated.     N.  Y.  Code  Civ.  Pro.  §  1595. 

'  Lynch  v.  Rome  Gas  Light  Co.,  42  Barb.  591. 

8  Crittenden  v.  Keenan,  18  N.  Y.  Week.  Dig.  502. 


CHAPTER    XXIX. 


PURCHASER. 


The  last  requisite  of  a  perfect  title  is  the  right  of 
property  which  may  exist  in  one  person,  when  the  appar- 
ent right  appears  to  be  in  another,  and  the  other  person 
have  the  possession  of  the  property.  An  action  of  parti- 
tion should  settle  all  questions  pertaining  to  the  right  of 
possession  of  the  property  and  the  right  of  ownership 
thereto.  The  modes  of  acquiring  land, — the  principal  of 
which  is  by.  purchase, — are  divided  into  two,  the  other 
being  by  heirship  or  descent.  The  action  of  partition 
having  been  conducted  through,  step  by  step,  until  a  sale 
shall  have  been  had,  then  comes  the  question  as  to 
the  rights  of  the  purchaser  and  his  duties  which  he  must 
necesarily  perform  in  completing  his  purchase.  He  is 
entitled  to  a  proper  title  to  the  premises,  and  is  entitled 
to  the  rights  of  those  whose  interests  have  been  sold,  and 
he  should  receive  those  rights  divested  from  any  incum- 
brance, or  from  anything  that  will  interfere  with  his  use 
and  enjoyment  of  the  property  hereafter.  He  has  the 
right  to  require  a  good  title,  and  will  not  be  compelled  to 
complete  his  purchase  and  accept  a  deed  which  leaves 
him  to  the  uncertainty  of  a  doubtful  title,  or  to  the 
hazard  of  a  contest  with  other  parties  which  will 
seriously  affect  the  value  of  his   property.'     If  this  were 

1  Jordan  v  Poillon,  77  N.  Y.  518,  ante. 
[414] 


PURCHASER.  415 

not  so,  there  would  be  but  little  use  of  a  partition,  or  of  a 
sale  of  the  premises,  because,  in  case  of  a  sale,  if  a  good 
title  could  not  be  conveyed  to  the  purchaser,  then  a  pur- 
chaser could  not,  in  some  instances,  be  procured.  The 
title  procured  upon  a  sale,  as  the  result  of  such  action, 
should  be  respected.-  If  the  defendants  in  the  action 
have  not  all  been  properly  served  with  process,  the  court 
will  not  compel  the  purchaser  to  complete  his  purchase.' 
Where  the  statute,  in  reference  to  service  of  process  upon 
absent  defendants,  has  not  been  strictly  complied  with, 
the  order  of  sale  in  the  partition  proceedings  is  fatally 
defective.  Conceding  that  the  affidavit,  in  reference 
to  the  residence  of  the  defendants,  might  have  been  hon- 
estly made,  and  that  the  plaintiff  had  no  knowledge  or 
belief  as  to  the  place  of  residence  of  those  defendants, 
who  were  absentees,  the  statute  must  be  fully  complied 
with,  and  the  affidavit  should  show  that  the  residence  of 
such  defendants  could  not  be  ascertained  with  reasonable 
diligence.  Unless  the  statute  should  be  complied  with, 
the  court  would  have  no  jurisdiction  of  such  defendants. 
The  jurisdiction  of  such  defendants,  being  purely  statu- 
tory, can  only  be  acquired  by  the  mode  provided  and 
prescribed  by  the  statute.^  Admission  of  the  service  of 
process  out  of  the  State  is  ineffectual,  and  does  not  give 
the  court  jurisdiction. '^  The  court  in  the  exercise  of 
equity  powers  will  not  compel  an  unwilling  purchaser  to 
take  a  doubtful  title.     But  where  a  party  seeks  to  dis- 

2  McLenathan  v.  McLenathan,  2  Pen.  &  W.  279,  ante ;  Manly 
V.  Pettee,  38  111.  128,  anle ;  Wood  v.  Fleet,  36  N.  Y.  499  ;  Brown  v 
Martin,  20   Barb.  123;  Pomeroy  Rem.  and  Rem.  R.  §§  373,  374. 

3  Cook  7/.  Farnam,  21  How.  Pr.  286. 

*  Hallettc/.  Righters,  13  How.  Pr.  43;  Hurham  v.  Peabody,  3 
Id.  109. 

'•>  Litchfield  v.  Burnett,  5   How.  Pr.  341. 


4l6  THE    LAW    OF    PARTITION. 

affirm  and  rescind  a  contract  of  sale,  and  to  recover  back 
the  deposit  of  his  purchase  money,  on  the  ground  of 
a  defective  title,  he  must  satisfy  the  court  that  the  title 
is  absolutely  bad,  before  he  can  recover/  When  ob- 
jections are  made  to  the  title  of  real  estate,  in  conse- 
quence of  certain  defects  in  the  proceedings,  and,  upon  a 
reference  made  by  the  court,  it  is  found  that  such  objec- 
tions were  well  taken,  and  it  being  impossible  to  cure 
them,  the  sale  should  be  rescinded,  and  the  purchaser 
reimbursed.'  The  purchaser  is  entitled  to  be  protected 
by  the  court,  even  against  an  error.* 

The  referee  in  a  partition  suit  must  be  obedient  to  the 
order  of  the  court  appointing  him.  In  one  important  case, 
decided  in  New  York,  all  the  parties  to  the  action  for  par- 
tition were  heirs  at  law  of  a  former  owner  of  the  premises, 
who  died  intestate,  and  such  heirs  took  their  titles  to  the 
lands  from  the  former  owner  by  descent.  The  complaint 
in  the  action  alleged  that  each  of  the  nine  parties, 
plaintiffs  and  defendants,  were  seized  in  fee  simple,  and 
entitled  to,  one  equal  undivided  one-ninth  part  of  said 
premises.     The  judge  before  whom  the  action  was  tried 

6  O'Rielly  v.  King,  28  How.  Pr.408  ;  citing  8  Car.  &  P.  248  ;  32 
Barb.  48  ;  4  Y.  &  C.  237  ;  2  Duer,  158. 

7  FarisenT/.  Parisen,  46  How,  Pr.  385. 

8  Holden  v.  Sackett,  12  Abb.  Pr.  473,  ante  ;  Dorsey  v.  Thomp- 
son, 37  Md.  26  ;  Wood  v.  Lee,  31  La.  Ann.  505  ;  McCahill  v.  Eq. 
Co.,  26  N.  J.  Eq.  531  ;  Yaple  v.  Titus,  41  Penn.  St.  195  ;  Kingsland 
V.  Spalding,  3  Barb.  Ch.  341. 

a  As  to  discharging  purchaser,  see  Mead  t/.  Mitchell,  5  Abb. 
Pr.  92  ;  Croghan  v.  Livingston,  6  Id.  350 ;  Disbrow  v.  Folger, 
5  Id.  53;  Rogers  z/.  McLean,  10  Id.  306:  11  Id.  440;  Jennings  ■?/. 
Jennings,  2  Id.  6  ;  Alvord  v.  Beach,  5  Id.  451  ;  17  N.  Y.  218;  Blakeley 
V.  Calder,  15  Id.  617,  ante ;  34  Id.  536;  31  How.  Pr.  279  ;  Varian 
V.  Stevens,  2  Duer,  635  ;  31  Barb.  305. 


PURCHASER.  41 7 

•without  a  jury,  found,  as  a  matter  of  fact,  and  held 
as  conclusion  of  law,  that  eight,  out  of  the  nine  parties 
and  heirs,  had  been  advanced  by  the  intestate,  in  sums 
differing  in  amount  ;  to  the  ninth,  no  advance  whatever 
had  been  made ;  and  the  judge  held  and  decided,  as 
a  conclusion  of  law,  and  adjudged,  that  the  parts  and 
shares  of  said  premises,  belonging  to  the  plaintiffs  and 
other  parties  to  the  action,  were  correctly  stated  and  set 
forth  in  the  complaint  ;  and  that  the  plaintiffs  were 
entitled  to  judgment  for  partition  and  division  of  such 
lands  and  premises  between  them,  in  accordance  with  the 
prayer  or  demand  of  the  complaint  ;  which  demand  was, 
that  partition  might  be  made  according  to  the  rights  and 
interests  of  the  several  parties  who  were  tenants  in  com- 
mon in  the  estate.  The  judgment  or  decree  followed 
the  conclusions  of  law,  and  adjudged  and  decreed  that  each 
of  the  said  plaintiffs  and  defendants  were  entitled  to  an 
equal  undivided  one-ninth  part  of  the  said  land  and  prem- 
ises. The  fact  that  advancements  had  been  made  w^as 
entirely  disregarded,  and  no  notice  of  such  advancements 
was  taken,  in  the  decree,  or  in  the  conclusions  of  law,  but 
each  party  was  decreed  and  adjudged  to  be  entitled  to  the 
same  as  though  no  advancements  had  been  made.  The 
appellate  court  held  that  this  was  a  manifest  error,  and  that 
the  exceptions  to  the  findings  and  conclusions  of  law,  in 
this  respect,  were  well  taken.  It  was  probable  in  this 
case,  in  view  of  all  the  facts  presented  to  the  court,  that 
some  of  the  parties  had  no  share  or  interest,  whatever,  in 
the  lands  in  question  ;  that  the  shares  of  such  as  did 
inherit  were  altogether  unequal  in  proportion,  inasmuch 
as  their  advancements  all  differed  in  amount.  The  decree 
provided  that  the  referee  pay  and  discharge,  out  of  the 
proceeds  of  the  sale,  all  taxes,  charges  and  assessments, 
27 


41 8  THE    LAW    OF    PARTITION. 

which  might  be  a  Hen  upon  the  premises.  It  appeared,  by 
his  report  of  sale,  that  he  sold  tlie  property  subject 
to  such  hens.  Notwithstanding  the  other  errors  in  the 
case,  the  court  held  that  the  order  confirming  the  report 
was  erroneous,  and  the  same  was  reversed,  and  the  sale 
set  aside  and  vacated,  as  being  contrary  to  the  decree. 
Such  reversal  and  setting  aside  of  the  sale  relieved  the 
purchaser  from  the  errors  and  irregularities  in  the  case.* 
The  court  will  not  discharge  the  purchaser,  and  re- 
lieve him  of  his  purchase,  by  reason  of  any  irregularities 
which  may  be  amended.  Any  error  in  stating  the  inter- 
ests and  shares  of  the  parties,  in  a  partition  suit,  or  any 
omission  to  state  what,  on  motion,  the  plaintiff  might 
have  been  compelled  to  insert  by  way  of  amendment,  is 
not  an  irregularity  which  can  affect  the  title,  where  the 
persons  interested  therein  are  all  parties  to  the  action 
and  are  therefore  concluded  by  the  decree.  A  pur- 
chaser will  not  be  discharged  beeause  of  the  plaintiff's 
omission  to  allege,  in  his  complaint,  that  there  are  no 
other  parties  in  interest,  or  incumbrancers,  than  those 
joined  ;  nor  on  account  of  the  referee's  omission  to  an- 
nex to  his  report  the  searches  for  incumbrances.  " 
Where,  in  a  judgment,  the  sale  was  directed  to  be  adver- 
tised three  weeks  instead  of  six,  as  required  by  law,  but, 
in  fact,  the  advertisement  was  published  six  weeks,  it 
was  an  error  which  could  be  amended,  and  the  purchaser, 
if  unable  to  give  any  other  reason,  must  complete  his  pur- 
chase and  perfect  his  title.  "  Questions  relative  to  the 
suitableness  of  guardians  ad  litem,  their  attention  to  the 
interests  of  their  wards,  the  money  had  by  administrators 

9  Kobart  v,  Hobart,  58  Barb.  296. 

10  Nobler/.  Cromwell,  26  Barb.  475  ;  3  Abb.  Ct.  App.  Dec.  382  ; 
27  How.  Pr.  289. 

11  Alvord  V.  Beach,  5  Abb.  Pr.  451,  ante. 


PURCHASER.  419 

on  behalf  of  such  ward,  and  the  amount  of  the  estate,  do 
not  concern  the  jurisdiction  of  the  court,  or  the  regularity 
of  the  sale,  nor  furnish  ground  for  relieving  the  purchaser 
of  his  purchase.  The  failure  of  the  referee  to  follow  the 
decree  in  respect  to  the  terms  of  the  sale,  when  such 
failure  is  not  sliown  to  be  prejudicial  to  the  infants,  is  not 
an  error  or  irregularity  of  which  the  purchaser  may 
take  advantage.  Upon  proof  that  the  deviation,  upon 
the  part  of  the  referee,  was  not  prejudical  to  the  infants, 
but  desirable  for  their  interest,  the  court  should  direct  a 
modification  of  the  decree  nunc  pro  tunc.  The  purchaser 
cannot  object  that  the  sale  was  not  made  on  the  day  to 
which  the  referee  had  adjourned  it,  where  the  court,  on 
confirming  the  sale  made  on  the  day  first  appointed,  has 
directed  the  sale  of  the  remaining  premises  to  stand  over 
to  a  future  time,  such  order  having  the  effect  to  nullify 
the  adjournment  ;  and  the  sale  subsequently  made,  after 
publication  of  notice  as  directed  by  the  decree,  is  regular. 
Neither  can  the  purchaser  object  that  there  are  mort- 
gages upon  the  property  which  the  referee  was  not  pre- 
pared to  satisfy  at  the  time  for  the  delivery  of  the  deed, 
when  it  appears  that  the  amount  to  be  paid  upon  the 
sales  was  sufficient  to  extinguish  the  mortgages,  and  that 
the  holders  were  at  hand  to  receive  the  money  and  dis- 
charge the  liens.  Nor  can  he  object  that  the  title  is  de- 
fective because  it  came  through  a  grantee  who  stood  in 
relation  of  trustee  at  the  time  he  purchased  in  his  own 
right  the  same,  forty  years  previously,  where  no  evidence 
is  produced  to  show  that  he  did  not  account  to  a  cestui 
qui  trust,  and  it  appears  that  the  property  has  since  been 
frequently  transferred  without  any  claim  being  made  by 
reason  thereof.  ''' 

1^  Herbert  v.  Smith,  6  Lans.  493. 


420  THE    LAW    OF    PARTITION. 

The  court  may  release  the  purchaser  from  his  bid  on 
the  ground  of  unreasonable  delay  to  his  prejudice  on  the 
part  of  the  sellers.  It  is  the  duty  of  the  court  to  give  the 
purchaser  the  benefit  of  his  purchase,  and  where,  by  the 
fault  of  the  parties,  the  completion  of  the  sale  has  been 
delayed  so  long  that  he  cannot  have  the  benefit  of  his 
purchase,  the  same  as  if  the  sale  had  been  completed  at 
the  time  contemplated  by  the  terms  of  the  sale,  the 
court  will  not  compel  him  to  take  title.  " 

The  purchaser  must  not  neglect  to  complete  the  sale 
within  a  reasonable  time  ;  he  must  perform  that  portion 
of  the  contract  that  is  imposed  upon  him  by  reason  of 
his  bid  and  purchase;  he  has  no  right  to  delay  those 
whose  interest  he  is  purchasing  from  completing  their 
part  of  the  business  or  withholding  from  them  the  pro- 
ceeds of  the  sale  to  which  they  are  justly  entitled.  " 

The  mistake  in  the  boundary  lines  may  be  remedied 
in  equity,  both  as  between  the  orignal  owners  and  their 
grantees,  who  purchased  with  the  understanding  that  the 
recognized  line  was  the  one  described  in  the  deed.  '^ 
Equity  will  give  relief  against  a  mistake  and  will  reform 
a  deed,  where  the  description  of  the  premises  given  in 
the  deed,  in  consequence  of  the  mistake  of  the  parties, 
embraces  more  or  less  land  than  was  intended.  "  Deeds 
may  be  reformed  not   only  in   cases   where   the  mistake 

13  Jackson  v.  Edwards.  7  Paige,  387,  ante ;  22  Wend.  497  ;  55 
N.  Y.  15. 

1*  7  Paige,  387,  ante  :  22  Wend.  498,  ante. 

15  May  V.  Adams,  2  N.  Eng.  203. 

16  Bush  V.  Hicks,  60  N.  Y.  298  ;  Winnipisiogee  Co.  v.  Perley, 
46  N.  H.83;  Bailey  v.  Woodbury,  50  Vt.  166;  Wilcox  v.  Lucas, 
121  Mass.  21  ;  Broadway  7^.  Buxton,  43  Conn.  282  ;  Beardsle)' z/. 
Knight,  10  Vt.  185  ;  Shattuck  v.  Gay,  45  Vt.  87  ;  Tabor  7/.  Cilley, 
53  Vt.  487  ;  Freeman's  Bank  v.  Vose,  23  Me.  98  ;  Adams  v.  Ste- 
vens, 49  Me.  362. 


PURCHASER.  42 1 

consists  in  the  omission  or  insertion  of  words  or  clauses 
contrary  to  the  intention  of  the  parties.  "  The  court 
having  the  equitable  right  to  correct  mistakes  and  errors 
in  deeds,  it  would  seem  that  a  mistake  in  a  deed  which 
was  within  the  provinice  of  the  court  to  correct  would 
not  excuse  the  purchaser  from  completing  his  purchase. 
In  case  a  deed  with  errors  in  it — such  errors  as  the  court 
of  equity  could  correct — should  be  tendered  or  delivered 
to  the  purchaser,  if  the  title  to  the  premises  purchased  by 
him  was  correct,  and  he  could  by  reason  of  his  purchase 
receive  that  which  he  bid  at  the  sale,  the  court  would 
compel  him  to  complete  the  purchase  upon  there  being 
tendered  to  him  a  correct  and  proper  deed.  There  might 
be  an  instance  of  this  kind  arise  in  practice,  though, 
in  all  probability  such  instances  would  be  rare,  because,, 
as  a  general  thing,  errors  in  the  deed  made  by  the  officer 
making  the  sale  would  be  discovered  previous  to  its  de- 
livery to  and  acceptance  by  the  purchaser,  and  in  all 
probability,  in  the  majority  of  partition  cases,  the  pur- 
chase will  be  complete  upon  the  part  of  both  the  seller 
and  the  purchaser  upon  the  delivery  of  the  deed. 

One  who  buys  at  a  judicial  sale  may  demand  a  title  free? 
from  any  reasonable  doubt,  as  condition  precedent  to  the- 
completion  of  his  purchase.  "  One  standing  in  a  fiduciary 
capacity  cannot  under  any  circumstances  purchase  or 
deal  with  the  property  which  he  holds  in  trust.  '*  Where 
no   sale    under   the  order  in   partition    proceedings  wa& 

1''  De  Riemer  7/.  Cantillon,  4  Johns.  Ch.  85. 

18  Rice  V.  Barrett,  3  Cent.  R.  440 ;  People  v.  Stock  Brokers 
Building  Co.,  92  N.  Y.  98. 

li*  Lewis  Trust  &  Trustees,  2  Am.  ed.  394,  398,  402  ;  Davoue  v. 
Fanning,  2  Johns.  Ch.  252;  Dobson  v,  Racey,  3  Sandf.  Ch.  66; 
Ames  7/.  Downing,  i  Bradf.  321  ;  Gardner  z/.  Ogden,  22  N.  Y.  327; 
Van  Epps  v.  Van  Epps,  9  Paige,  237. 


42  2  THE    LAW    OF    PARTITION. 

made  by  the  sheriff  at  the  term  designated  i:i  the  order, 
he  had  no  power  to  make  the  sale  at  a  subsequent  term 
without  a  renewal  of  the  order,  either  by  the  court  or 
clerk.  Such  sale  would  be  void.  If  the  original  deed  is 
void  when  made,  it  remains  void;  and  cannot  be  changed 
so  as  to  be  made  valid.  ""  Confirmation  of  the  sale  gives 
finality  to  the  proceedings  and  is  conclusive  upon  the 
parties.  The  rule  is  generally  that  the  deed  is  not  sub- 
ject to  collateral  attack.  The  confirmation  of  the  sale  is 
a  judicial  decision  that  the  sale  is  valid,  and  the  parties 
to  the  suit  are  estopped  to  deny  its  validity  when  ques- 
tioned collaterally.  "^  The  court  must  take  into  consid- 
eration, notwithstanding  the  above  general  rule,  that  the 
purchaser  of  the  land  is  not  a  party  to  the  action,  and 
while  the  parties  to  the  action  may  be  bound  by  the 
judgment,  and  the  final  judgment  valid  and  correct  so  far 
as  the  parties  to  the  action  are  concerned,  it  is  not  bind- 
ing upon  the  purchaser,  and  in  no  way  governs  or  controls 
him  or  his  purchase,  unless  such  final  judgment  and  all 
the  proceedings  pertaining  to  the  action  are  such  that  he 
receives  upon  his  purchase  a  reasonably  good  title  to  the 
lands. 

The  title  to  the  premises  should  be  readily  ascertained 
by  the  record.  The  record  should  show  the  sources  of 
title  to  the  tenants  in  common  of  the  parties  to  the  action. 
Deeds  should  be  explicit.  In  Indiana,  it  has  been  held 
that  the  commissioner's  deed  should  describe  the  kind  of 
record,  number  of  volume  and  page,  wherein  the  order  or 
judgment  is  entered,  by  virtue  of  which  the  person  named 

.  20  Carson  v.  Hughes,  6  W.  R.  665. 
21  Lasell  V.  Powell,  7  Cold.  282;  Harrison  v.  Harrison,  i   Md. 
Ch.  332  ;    Koeller -t/.  Ball,  2  Kans.  160;    Phillips  v.  Dawley,  i  Neb. 
320;  Henry  v.  McKerlie,  78  Mo.  430. 


PURCHASER.  423 

as  a  commissioner  was  appointed  by  the  court, — that  is, 
that  the  deed  should  show  his  authority  to  execute  the 
particular  deed  in  question,  to  the  end  that  the  grantee 
in  such  a  deed,  and  all  persons  thereafter  interested 
in  the  land  described  therein,  may  readily  ascertain 
from  the  record,  the  true  history  of  the  commissioner's 
authority  to  execute  such  deed.  ''  The  record  should 
show  who  the  parties  to  the  action  were,  and  that  the 
proceedings  were  properly  conducted.  When  such  is  the 
case,  there  being  no  errors  or  irregularities,  the  convey- 
ance by  the  commissioner  is  binding  effectually.  ''  Such 
a  deed  would  pass  proper  title  to  the  purchaser,  and  he 
would  be  compelled  to  complete  his  purchase. 

The  purchaser  of  land  at  a  judicial  sale  is  entitlet.  to 
a  marketable  title.  "  A  title  open  to  reasonable  doubt 
is  not  a  marketable  one,  and  the  court  cannot  make  it 
one  by  passing  upon  an  objection  depending  upon  a  dis- 
puted question  of  fact  or  a  doubtful  question  of  law,  in 
the  absence  of  the  party  in  whom  the  outstanding  right 
is  vested.  A  purchaser  at  a  partition  sale  under  such 
circumstances  will  not  be  compelled  to  complete  his 
purchase  where  there  are  objections  to  the  title,  and 
the  title  is  not  a  marketable  one.  He  need  not  hazard 
his  interest  by  taking  such  a  title,  and  the  court  will  not 
compel  him  to  do  so.  "  To  sustain  a  defense  of  defect  of 
title  in  an  action  to  compel  the  performance  of  a  contract 
for  the  purchase  of  land,  there  must  be  at  least  a  reason- 
able doubt  as  to  the  vendor's  title,  such  as  affects  its  value 

22  Singer  z/.  Scheible,  8  W.  R.  404. 

23  Arnold  v.  Butterbaugh,  92  Ind.  403  ;  Elston  v.  Piggott,  94 
Ind.  14. 

24  Fleming  v.  Burnham,  100 N.  Y.  i. 

25  Shriver  v.  Shriver,  86  N.  Y.  576 ;  Argall  v.  Raynor,  20  Hun, 
267. 


424  THE    LAW    OF    PARTITION. 

and  would  interfere  with  the  sale  of  the  land  to  a  reason- 
able purchaser.  Defects  in  the  record  or  paper  title  may 
be  cured  or  removed  by  parol  evidence.  **  A  title  open  to 
a  reasonable  doubt  is  not  such  a  title  as  would  find  a 
ready  purchaser.  For  that  reason  it  cannot  be  termed  a 
marketable  title.  It  would  be  injustice  to  compel  a  pur- 
chaser to  take  a  title,  the  validity  of  which  depended  upon 
some  question  of  fact,  where,  when  the  facts  should  be  pre- 
sented to  the  court,  the  decision  might  be  so  changed, 
or  so  made  that  great  injury  might  be  done  to  the  pur- 
chaser, and  the  title  to  his  property  much  changed  there- 
by. Where  such  a  case  presents  itself  to  the  court,  the 
purchaser  should  be  discharged  and  relieved  from  his 
purchase.  " 

Where  real  property  is  directed  to  be  sold  by  the 
court,  it  must  be  sold  in  the  county  where  it  is  situated, 
unless  some  other  provision  shall  have  been  made  by 
law.  ^  The  referee  appointed  to  make  such  sale,  may  be 
compelled  to  give  such  securities,  as  the  court  deems 
best,  for  the  proper  application  of  the  moneys  received 
by  him  upon  the  sale,  or  for  the  payment  thereof  by  the 
purchaser,  directly  to  the  person  or  persons  entitled  there- 

26  Hellreigel  2/.  Manning,  97  N.  Y.  56;  Smith  z/.  Wells,  69  Id. 
600;  Jordan  v.  Poillon,  77  Id.  518,  anie ;  Weeks  v.  Tomes,  10 
Hun,  349. 

27  100  N.  Y.  I  ;  97  Id.  56;  86  Id.  575- 

t  Except  where  special  provision  is  otherwise  made  by  law, 
real  property,  adjudged  to  be  sold,  must  be  sold  in  the  county 
where  it  is  situated,  by  the  sheriff  of  the  county,  or  by  a  referee, 
appointed  by  the  court  for  that  purpose,  who  must  execute  a 
conveyance  to  the  purchaser.  The  conveyance  is  efiectual,  to 
pass  the  right,  title  or  interest,  of  a  party,  adjudged  to  be  sold. 
But  nothing  contained  in  this  section  shall  be  deemed  to  repeal 
or  modify  the  provisions  of  any  law  specially  regulating  the  sale 
of  real  property,  under  a  judgment  or  decree  of  any  court,  in  any 
particular  county  of  the  state.     N.  Y.  Code  Civ.  Pro.  g  1242. 


PURCHASER.  425 

to,  or  their  attorneys.  '^  It  would  seem  by  this  that 
the  court  anticipated  that  the  purchaser  may,  in  some  in- 
stances, pay  the  purchase  money  directly  to  the  person 
or  persons  entitled  to  the  same,  and  that  such  payment 
made  by  the  purchaser  is  as  valid  as  if  made  to  the 
sheriff  or  referee  appointed  to  conduct  the  sale,  such  pay- 
ment entitling  the  purchaser  to  the  proper  conveyance 
of  the  property.  The  conveyance  should  state  the  par- 
ticular party  or  parties,  whose  right,  title  or  interest  is 
directed  to  be  sold,  and  must  distinctly  state,  in  the 
granting  clause  of  the  conveyance,  whose  right,  title  or 
interest  was  sold,  and  is  conveyed.  If  the  deed  or  deeds 
of  conveyance  fail  to  make  such  statement,  the  purchaser 
is  not  bound  to  accept  the  conveyance,  and  the  officer 
making  such  sale  is  liable  for  the  damages,  which  the 
purchaser  sustained  by  reason  of  such  omission,  whether 
the  purchaser  accepts  or  refuses  such  conveyance.  ^ 

The  purchaser  may  be  allowed  to  give  security  that 
he  will  complete  the  purchase  made  by  him.  The  surety 
of  a  purchaser  of  real  estate,  under  a  decree  in  partition, 


o  Where  a  referee  is  appointed  by  the  court,  to  sell  real  prop- 
ery,  the  court  may  provide  for  his  giving  such  security,  as  the 
court  deems  just,  for  the  proper  application  of  the  money  received 
upon  the  sale ;  or  for  the  payment  thereof  by  the  purchaser,  di- 
rectly to  the  person  or  persons  entitled  thereto,  or  their  attorneys, 
N.  Y.  Code  Civ.  Pro.  §  1243. 

d  A  conveyance  of  property,  sold  by  virtue  of  an  execution, 
or  sold  pursuant  to  a  judgment,  which  specifies  the  particular 
party  or  parties,  vi^hose  right,  title  or  interest  is  directed  to  be 
sold,  must  distinctly  state,  in  the  granting  clause  thereof,  whose 
right,  title  or  interest  was  sold,  and  is  conveyed,  without  nammg 
in  that  clause,  any  of  the  other  parties  to  the  action  ;  otherwise, 
the  purchaser  is  not  bound  to  accept  the  conveyance,  and  the 
officer  executing  it  is  liable  for  the  damages,  which  the  purchaser 
sustains  by  the  omission,  whether  he  accepts  or  refuses  to 
accept  it.     N.  Y.Code  Civ.  Pro.  ^  1244. 


426  THE    LAW    OF    PARTITION. 

becomes  a  party  to  the  proceedings,  and  may  properly 
invoke  the  aid  of  the  court  for  his  protection  ;  and,  upon 
default  in  payments  by  the  purchaser,  the  court  will  or- 
der the  property  resold  upon  the  petition  of  the  surety. 
The  first  purchaser  will  be  entitled  to  any  surplus  remain- 
ing after  such  resale,  over  the  sum  due  on  the  installments 
unpaid  and  costs  adjudged  by  the  court. ''  The  pur- 
chaser is  not  entitled  to  a  deed,  until  the  purchase  money 
is  paid  ;  or,  at  any  rate,  until  he  shall  have  complied 
with  the  conditions  of  sale.  ^^  Upon  the  default  of  the 
purchaser,  under  a  decree  in  chancery,  the  court  has 
power  to  order  a  resale.  ^^ 

The  purchaser  is  liable  for  any  loss  or  damage  occa- 
sioned by  reason  of  his  refusing  to  carry  out  the  sale  and 
complete  his  purchase.  The  remedy  against  him  is  by 
an  application  to  the  court  to  compel  him  to  complete  it, 
or  to  resell  the  property,  and  hold  him  liable  for  the  loss 
and  the  additional  expenses.  Such  application  will  be 
disposed  of  by  the  court  upon  equitable  principles,  and 
facts  would  be  considered  which  could  not  be  allowed  to 
influence  the  decision  of  a  suit  at  law."  At  first,  there 
was  some  hesitation  as  to  the  power  of  the  court  of  chan- 
cery in  such  cases.  Lord  Eldon  doubted  whether  he 
had  the  power  to  commit  a  purchaser,  or  do  more  than 
discharge  him  from  his  purchase  ;  but    at    length  made 

28  Rout  V,  King,  i  West.  R.  593. 

29  Swain  v.  Morberiy,  17  Ind.  99;  Swindell  v.  Richey,  41  Ind. 
281  ;  Stout  V.  McPheeters,  84  Ind.  5S5  ;  Deputy  v.  Mooney,  97 
Ind.  463. 

30  Stephens  z*.  Magruder,  31  Md.  168;  Munson  v.  Payne,  9 
Heisk.  672  :  Mosby  v.  Hunt,  Id.  675  ;  Long  v.  Weller,  29  Gratt. 
347 ;  Thornton  v.  Fairfax,  29  Id.  669  ;  In  re  Pettillo,  80  N.  C.  50 ; 
Warfield  v.  Dorsey,  39  Md.  304. 

31  Miller  v.  Collyer,  36  Barb.  251. 


PURCHASER,  427 

the  order,  observing  that  a  purchaser  could  not  be 
allowed  to  baffle  the  court."  In  181 1,  a  decision  was 
made  against  a  purchaser  that  he  pay  his  purchase  money 
within  a  time  set,  or,  in  case  of  default,  that  the  property 
be  re-sold,  and  the  purchaser  pay  the  deficiency  from  the 
price  of  his  purchase  and  the  price  at  the  resale,  with  the 
costs."  This  case  was  afterwards  approved  in  another,  in 
which  there  had  been  an  order  discharging  the  purchaser 
from  his  purchase,  but  at  the  same  time  ordering  a  resale, 
and  holding  him  for  the  deficiency."  The  early  cases  did 
not  proceed  strictly  upon  the  ground  of  contract,  but  upon 
the  ground  that  when  a  person  became  a  purchaser  under 
a  decree,  he  submitted  himself  to  the  jurisdiction  of  the 
court  as  to  all  matters  connected  with  the  sale  or  with 
him  in  his  character  as  purchaser.  This  has  been  decided 
in  New  York  State,  and,  undoubtedly,  was  the  most  proper 
reason  given  by  the  court  of  chancery  for  compelling  a  re- 
sale and  holding  the  purchaser  liable  for  damages.  The 
chancery  decision  is,  that  where  a  person  becomes  a  pur- 
chaser under  a  decree  of  that  court,  he  submits  himself  to 
the  jurisdiction  of  that  court  in  that  suit  as  to  all  matters 
connected  with  such  sale,  or  relating  to  him  as  the  pur- 
chaser of  such  property."  Notwithstanding  that  the  pur- 
chaser places  himself  within  the  jurisdiction  of  the  court, 
there  is,  as  we  believe,  an  implied  contract  upon  his  part 
with  the  vendors,  that  he  will  complete  the  purchase  made 
by  him,  and  that  he  will  comply  with  the  rules  and  regu- 
ations  of  the  sale,  bringing  to  it  a  further  element  in  favor 


3^  Lansdon  v.  Elderton,  14  Ves.  512. 
•*^  Gray  v.  Gray,  i  Beav.  199. 

34  Harding  u.  Harding,  4  Myl.  &  C.  514. 

35  Rcqua  v.  Rea,  2  Paige,  339  ;  citing  Cassamajor  v.  Strode,  i 
Sim.  &  S.  381. 


428  THE    LAW    OF    PARTITION. 

of  his  paying  damages  for  not  completing  his  purchase 
as  it  would  be  damages  for  the  non-fulfillment  of  a  con- 
tract upon  his  part  made  by  him,  or  which  the  court  would 
have  a  right  to  imply  was  made  by  him  by  reason  of  his 
bid  and  his  title  of  the  sale. 


CHAPTER   XXX. 

REVIEW   OF    JUDGMENT,   VACATING   AND   SETTING   ASIDE 

SALE. 

The  sale  by  virtue  of  an  interlocutory  judgment  in 
partition  actions  is  a  judicial  sale.  The  court  retains 
jurisdiction  of  the  matter,  and  is  empowered  to  review  all 
the  proceedings  pertaining  to  the  action,  providing  it  is 
plainly  to  be  seen  that  the  sale  has  been  improperly 
brought  about,  or  fraud  used  in  procuring  the  interloc- 
utory decree,  or  the  sale  fraudulently  conducted. 

The  grounds  for  setting  aside  judicial  sales  are  more 
limited  in  America  than  in  England.  In  some  instances, 
the  mere  inadequacy  of  price,  unattended  by  any  other 
circumstance,  is  not  sufficient  to  set  aside  the  sale,  or 
to  authorize  the  court  to  direct  a  re-sale  of  the  lands.  If 
the  interlocutory  judgment  shall  have  been  fully  obeyed, 
the  advertisement  of  sale  having  been  published  as  di- 
rected, and  the  necessary  notices  having  been  posted,  as 
the  law  and  practice  requires,  there  being  no  collusion  at 
the  time  of  the  sale,  the  person  conducting  the  sale  strik- 
ing off  the  property  at  the  greater  price  bid  to  him  there- 
for, then  the  court  is  not  authorized  to  set  aside  the  sale 
because  there  is  an  inadequacy  of  price  as  compared  with 
the  full  value  of  the  property.  A  resale  will  be  ordered 
when  there  has  been  fraud  or  misconduct  in  the  pur- 
chaser, or  of  some  person   connected  with  the  sale,  or  for 


430  THE    LAW    OF    PARTITION. 

surprise  created  by  the  purchaser  or  other  interested  per- 
sons. In  case  of  fraud,  collusion,  or  surprise,  inadequacy 
of  price  becomes  an  element  in  the  case,  and  will  have 
greater  or  less  weight  with  the  court  in  making  their 
order  for  a  resale  of  the  premises.  The  inadequacy  of 
price  will  be  a  single  element  in  favor  of  a  resale  only 
when  that  inadequacy  of  price  is  the  result  of  fraud,  or 
collusion  by  persons  connected  with  the  sale — especially 
the  purchaser. 

A  collusive  arrangement  to  prevent  competition  at  a 
judicial  sale,  and  a  sale  in  pursuance  of  such  arrange- 
ment, to  the  injury  of  an  infant,  is  a  fraud  in  law,  whether 
made  with  or  without  the  consent  of  his  guardian  ad  litem, 
and  subsequent  mortgagees  and  purchasers  with  a  knowl- 
edge of  the  fraud  can  gain  no  advantage  therefrom. 
These  questions  of  fraud  are  not  matters  of  discretion, 
and,  when  involved  in  an  order,  they  may  be  reviewed  in 
the  appellate  court,  the  same  as  if  presented  upon  a  bill 
of  exceptions.  An  infant  party  to  an  action  is  entitled 
to  the  protection  of  the  court  upon  summary  application 
to  set  aside  such  a  sale,  as  well  as  in  a  formal  action. 
When  the  right  to  relief  has  been  once  established,  it  is 
not  within  the  discretion  of  the  court  absolutely  to  reject 
the  summary  application  and  remit  him  to  his  action.  A 
refusal  to  grant  relief  upon  a  summary  application  is  not 
ordinarily  a  final  adjudication  of  the  merits  of  the  contro- 
versy. It  will  bar  another  summary  application,  unless 
leave  shall  have  been  given  to  renew,  but  it  will  not 
affect  any  other  remedy  that  the  parties  may  have.i 

1  Howell  V.  Mills,  53  N.  Y.  322  ;  citing  49  Id.  227  ;  22  Barb. 
227;  2  Story  Eq.  Jur.  §  1334;  13  Wend.  227  ;  26  Id.  143;  Story  on 
Agency,  140;  19  Paige,  315;  29  N.  Y.  418  ;  23  Id.  160;  3  Id.  334; 
16  Wend.  372  ;  18  Id.  350 ;  3  How.  Pr.  357  ;  28  N.  Y.  122  ;  30  Id.  80. 


REVIEW.  '431 

The  English  practice  of  opening  biddings  and  ordering 
a  resale  before  the  confirmation  of  the  sale,  upon  an 
offer  being  made  of  an  advance  of  ten  per  cent,  and  an 
indemnity  to  the  purchaser,  has  not  been  adopted  in  New 
York  State.  In  that  State,  neither  before  nor  after  the 
confirmation  of  the  report  of  the  sale,  will  a  resale  be 
ordered  upon  an  offer  to  increase  the  price.  Special  circum- 
stances must  exist,  where  the  sale  is  not  void,  to  justify  an 
order  for  a  re-sale.  It  will  be  ordered  where  there  has 
been  fraud  or  misconduct  in  the  purchaser  ;  fraudulent 
negligence  or  misconduct  in  any  other  person  connected 
with  the  sale  ;  or  surprise  or  misapprehension  created  by 
the  conduct  of  the  purchaser,  or  of  some  person  interested 
in  the  matter,  or  of  the  officer  who  conducts  the  sale. 
Infant  owners  will  always  be  relieved  from  such  fraud, 
negligence,  misconduct,  surprise  or  misapprehension,  by 
a  resale,  when  it  plainly  appears  to  the  court  that  their 
property  has  been  sacrificed  at  such  sale  by  reason  of 
fraud,  negligence  or  misconduct,  as  aforesaid.  The  rights 
of  the  infants  must  not  be  invaded,  or  injured,  or  preju- 
diced so  that  they  become  the  losers  thereby.  The  court 
must  protect  them.  And,  in  case  of  fraud  upon  them  at 
a  judicial  sale,  there  is  no  other  way  by  which  the  infant 
can  be  protected  than  to  direct  that  a  sale  be  opened  and 
a  resale  of  the  premises  be  had.^ 

The  biddings  at  a  master's  sale  will  not  be  opened 
except  in  very  special  cases,  and  then  it  will  not  be  done 
unless  the  purchaser  is   fully  and  liberally  indemnified  for 

2  Lefevre  v.  Laraway.  22  Barb.  168  ;  White  v.  Wilson,  14  Vcs. 
181;  Morice  T/.  Bishop  of  Durham,  11  Id.  57;  Lansing  v.  McPher- 
son,  3  Johns.  Ch.  424;  May  7a  May,  11  Paige,  2or  ;  Americar  Ins. 
Co.  V.  Oakley,  9  Id.  259;  Brown  v.  Frost,  10  Id.  244;  Billington 
V.  Forbes,  Id.  487. 


432  THE    LAW    OF    PARTITION. 

all  damages,  costs  and  expenses  to  which  he  has  been 
subjected.  A  sale  of  the  property  of  adults  will  not  be 
disturbed  when  it  has  been  sacrificed  in  consequence  of 
their  own  negligence.  ^  Chancellor  Kent  permitted  a 
resale  in  one  case,  upon  the  ground  that  infants  were  in- 
terested in  the  sale  of  the  property  ;  that  the  executors 
of  a  mortgagee  were  innocently  misled,  and  induced  to 
believe  that  the  sale  of  the  mortgaged  premises  would  not 
take  place  on  the  day  appointed,  there  being  no  cul- 
pable negligence  on  their  part.  *  These  English  decisions 
are  cited  by  Chancellor  Kent,  upon  the  question  of  Eng- 
lish practice  of  opening  biddings  at  the  master's  sale  and 
that  the  English  courts  under  their  practice  require  the 
deposit  of  a  reasonable  advancement  together  with  the 
purchaser's  expenses.  But  the  practice  now  seems  to  be, 
and,  in  fact,  it  is  more  just  that  the  purchaser  who  has 
been  guilty  of  fraud  should  be  the  loser,  because  the ' 
court  directed  a  resale  by  reason  of  such  fraud,  that  the 
loss  is  for  him  to  sustain,  and  not  for  those  who  were  in- 
nocent and  whom  he  attempted  to  injure  by  reason  of 
his  fraudulent  act. 

The  application  to  set  aside  a  sale  made  in  pursuance 
of  a  judgment  of  the  court,  in  an  equitable  action,  is  ad- 
dressed to  the  discretion  of  the  court.  ^  The  granting  or 
denying  of  the  application  is  a  matter  within  the  discre- 
tion of  the  court  to  whom  the  application  is  made  ;  but, 
if   innocent  parties  have  been  defrauded  by  reason  of  the 

3  Duncan  v.  Dodd,  ?  Paige,  99.  See  Clarke  Ch.  103,  481  ;  2 
Edw.  Ch.  617. 

*  Williamson  v.  Dale,  3  Johns.  Ch.  290  ;  citing  Livingston  v. 
Byrne,  11  Johns.  566;  i  Ves.  Jr.  453;  4  Ves  700;  6  Id.  466, 
513;  7  Id.  420;  8  Id.  214;  14  Id.  151  ;  i  Ves.  &  B.  361  ;  3  Id.  144; 
14  Ves.  151. 

5  Winter  v.  Eckert,  93  N.  Y.  368. 


REVIEW.  433 

fraudulent  acts  of  the  purchaser  at  the  sale,  or  of  those 
connected  therewith,  then  it  becomes  the  duty  of  the 
court  to  protect  those  who  are  innocent  of  the  fraud. 
This  rule  is  applicable  where  the  parties  to  the  action  are 
adults,  and  are  not  affected  by  any  mental  disability, 
such  as  would  debar  them  in  any  court  from  protecting 
their  own  interests.  If,  on  the  other  hand,  persons  who 
are  debarred  are  infants,  lunatics,  idiots,  or  habitual 
drunkards,  the  statute  makes  it  the  bounden  duty  of  the 
court  to  protect  the  interests  of  such  persons,  and  in 
such  case  it  is  not  a  matter  of  discretion  with  the 
court.  If  fraud  has  been  committed,  so  that  persons  thus 
under  disability  suffer  and  their  property  is  sacrificed  by 
reason  of  such  fraud,  then  the  court  must  protect  them.. 
The  discretion  of  the  court  is  entirely  taken  out  of  the. 
matter,  for  the  duty  of  the  court  is  imperative.  If  it  lies-, 
entirely  within  the  discretion  of  the  court,  there  can  be: 
no  review  of  the  decision  by  the  courts  of  the  last  resort  ;; 
but  in  case  of  infancy,  lunacy,  etc.,  this  is  an  element  in 
the  case,  which  will  be  seen  as  by  examination  of  the 
cases  already  referred  to,  pertaining  to  fraud  committed  as 
against  infants,  and  the  review  of  the  proceedings,  and 
the  opening  of  the  sale,  and  the  ordering  of  a  resale,  in 
cases  where  infants'  interests  have  been  injured,  is  a  mat- 
ter of  justice  and  right.  Orders  and  decrees  that  are  dis- 
cretionary are  not  usually  appealable.  * 

The  rule  is  well  established  that  a  court  of  equity 
may,  in  its  discretion,  set  aside  a  sale  made  under  its  de- 
cree, and  may  order  a  resale,  where  fraud  is  alleged,  upon 

6  Peck  V.  New   York  &  New  Jersey  Ry.  Co.,    85  N.   Y.  246 ; 
Hale -z/.  Clauson,  60  Id.  339;  Crane  ^'.  Stiger,  58  Id.  625  ;  Hazelion 
V.  Wakeman,  3  How.  Pr.  357  ;  Bulldlo  Savings   Bank  v.  Newton, 
23  N.Y.  160  ;  Dows  v.  Congdon,  28  Id.  122. 
28 


434  THE     LAW    OF     PARTITION. 

facts  casting  such  a  degree  of  suspicion  upon  the  fair- 
ness of  the  sale  as  to  render  it,  in  its  judgment,  proper  to 
set  aside  the  sale  and  order  a  resale,  although  fraud 
may  not  be  clearly  established.  The  Special  Term 
order  setting  aside  a  sale  under  such  circumstances 
may  be  reviewed  by  the  General  Term,  but  it  is  a 
general  rule  that  where  only  the  rights  of  the  par- 
ties to  the  action  are  involved,  no  appeal  can  be  had 
to  the  Court  of  Appeals.  '  Courts  of  equity  exercise  a 
supervision  over  sales  made  by  virtue  of  their  decrees, 
which  is  not  in  all  cases  controlled  by  legal  rules,  but 
may  be  guided  by  considerations  resting  within  the  dis- 
cretion of  the  court.  They  may  set  aside  their  own 
judicial  sales,  upon  grounds  insufficient  to  confer  upon 
the  objecting  party  the  absolute  right  to  a  resale.  Courts 
of  equity  may  grant  relief  against  mere  mistakes,  acci- 
dents, hardships,  or  unfair  and  dishonest  conduct  of 
others,  though  such  conduct  may  not  amount  to  a  viola- 
tion of  the  law.  If  the  circumstances  surrounding  the 
case  are  such  as  to  cast  suspicion  upon  the  fairness  of 
the  sale,  and  if  the  court  believes  it  expedient  under  all 
the  circumstances  to  vacate  such  sale,  it  may  do  so, 
though  the  alleged  fraud  may  not  have  been  clearly 
established.  Judicial  sales,  when  fairly  conducted,  should 
not  be  set  aside  except  for  good  reasons.  The  party  ask- 
ing to  have  the  sale  set  aside  should  not  be  guilty  of 
laches.  He  should  move  at  once.  A  motion  made  for  a 
resale  thirteen  months  after  the  sale,  by  one  who  had  no- 
tice of  the  original  proceedings,  is  too  late.  Such  delay 
is  laches.  '  When  a  judicial  sale  has  been  set  aside,  it  is 
regarded  as  no  sale.  ^ 

7  Fisher  v.  Hersey,  78  N.  Y.  387. 

8  Claflin  V.  Clark,  22  N.  Y.  Week  .Dig.  1 37. 

»  Fisher  v.  Hersey,  12  Week.  Dig.  534 ;  85  N.  Y,  633,  ante. 


REVIEW.  435 

A  final  judgment  in  an  action  for  partition  is  not  more 
exempt  from  the  interference  and  control  of  courts 
of  equity  than  are  final  judgments  and  decrees  in  other 
cases.  Mistakes  of  facts,  or  such  an  accident  as  would 
authorize  a  court  of  equity  to  enjoin  or  set  aside 
an  ordinary  judgment,  would  justify  a  court  of  equity 
in  setting  aside  or  correcting  a  judgment  or  decree  in 
partition.  And,  in  a  proper  case,  where  no  extrinsic  cir- 
cumstances were  to  be  considered  by  the  court,  the 
remedy  may  be  by  motion.  Where  the  judgment  in  par- 
tition was  entered  more  than  ten  years  ago,  and  the 
parties  had  entered  into  the  possession  and  were  in  con- 
trol of  the  rents,  issues  and  profits  of  the  premises,  or  of 
the  parcels  of  the  premises  set  off  to  them  respectively  in 
severalty,  the  premises  consisting  of  different  parcels  of 
different  values,  the  land  divided  being  subject  to  known 
incumbrances,  the  partition  being  a  long,  intricate  and 
difficult  proceeding,  and  involving,  to  a  great  extent,  the 
judgment  and  discretion  of  the  commissioners  appointed 
by  the  court  to  make  the  partition,  one  of  the  commis- 
sioners having  died  since  the  partition  was  made,  the 
court  held  that  these  facts  afforded  sufficient  reason  for 
denying  summary  relief  by  a  motion  in  the  original  parti- 
tion suit.  '" 

The  case  of  Marvin  v.  Marvin,  being  in  the  courts  for 
a  number  of  years,  became  somewhat  noted  as  furnishing 
a  large  amount  of  practice  for  the  lawyers  interested  and 
the  courts  of  Western  New  York.  Upon  the  motion  to 
open  or  set  aside  the  final  judgment  or  decree  of  parti- 
tion, Judge  Talcott  in  his  opinion  says :  "  But  in  the  case 
now  at  bar  there  seem   to  be  various  objections    to  this 

10  Marvin  v.  Marvin,  52  How.  Pr.  97. 


436  THE    LAW    OF    PARTITION. 

summary  mode  of  relief.  The  judgment  in  partition  was 
entered  more  than  ten  years  ago,  and  the  parties  then 
entered  into  the  possession  and  the  pernancy  of  the 
rents,  issues,  and  profits  of  the  various  premises,  to  them 
respectively  set  off  in  severalty.  The  partition  involved 
many  distinct  parcels  of  land,  differently  situated  or  of 
different  values,  and  many  parcels  of  the  land  divided 
were  subject  to  known  incumbrances.  The  commission- 
ers were  authorized,  by  the  commission  appointing  them, 
to  cause  surveys  to  be  made  of  the  several  parcels,  and 
were  required,  in  making  the  partition,  to  have  regard  to 
the  liens  and  incumbrances  thereon  by  taxes,  tax  sales 
and  mortgages,  which  were  set  forth  in  the  report  of  the 
referee,  and  were  also  required  and  directed,  in  making 
said  partition,  to  have  regard  to  the  leases  of  certain  por- 
tions of  the  property  which  were  made  by  the  mother  of 
the  co-partitioner  in  her  life-time,  and  which  were  par- 
ticularly described  in  the  report  of  the  said  referee.  The 
partition  was  a  long  and  intricate  proceeding,  and  invol- 
ved, to  a  great  extent,  the  judgment  and  discretion  of 
the  commissioners,  one  of  whom  is  now  dead."  The  de- 
cision of  the  court  in  this  case  was  that  the  proper 
remedy  was  by  a  new  action,  in  the  nature  of  a  bill  of 
review,  and,  in  such  a  suit,  the  further  alienation  of  the 
property  partitioned  to  the  copartitioner,  might,  if  neces- 
sary, be  restrained  by  a  notice  of  lis  pendens,  or  an  in- 
junction order,  and,  after  examining  and  disposing  of  all 
questions,  whether  of  fact  or  law,  bearing  upon  the  equit- 
able rights  of  the  parties,  a  decree  might  be  made  for  a 
repartition,  if  the  situation  of  the  premises  should  be  such 
as  to  render  that  course  practicable  without  injustice  ;  if 
not,  then  such  other  equitable  relief  might  be  given  as 


REVIEW.  437 

the  situation   of  the  parties  and  the  property  might  seem 
to  require.  '^ 

To  justify  the  court  in  setting  aside  a  partition  of  real 
estate  on  the  ground  ofa  mistake  in  judgment  on  the  part 
of  the  commissioners,  the  mistake  must  be  a  serious  one 
and  the  evidence  of  it  too  plain  to  be  mistaken.  If  the 
evidence  is  doubtful  or  contradictory,  the  report  will  be 
sustained.  '^ 

The  appellate  court  may  review  the  judgment.  It  is 
supposed  that  the  interlocutory  judgment  determines  the 
rights  of  the  parties  to  the  action  and  that  it  should  decide 
the  whole  issues  between  the  parties,  and  leave  nothing 
open  and  reserved,  except  matters  of  detail  in  carrying 
out  the  interlocutory  judgment.  If  the  complaint  de- 
mands an  account  for  rents  and  profits,  if  the  court  should 
construe  that  the  defendant's  liability  to  make  such  an 
account  was  limited  by  the  statute  of  limitations  to  six 
years  before  the  commencement  of  the  action,  unless  the 
question  should  be  raised  at  the  trial,  it  cannot  be  raised 
in  the  appellate  court,  and  that  court  cannot  review  the 
judgment  upon  the  ground  that  an  accounting  was  had 
for  more  than  six  years,  the  subsequent  proceedings  being 
in  conformity  with  the  interlocutory  judgment,  and  the 
final  judgment  being  a  decree  confirming  what  is  done 
after  and  pursuant  to  the  interlocutory  judgment.  The 
special  term  in  rendering  the  final  decree  simply  gives 
effect  and  affirms  the  interlocutory  judgment  and  com- 
pletes the  action.  Questions  to  be  brought  before  the 
appellate    court   upon  review  must  first    be  raised    upon 

11  Citing  Allnatt  on  Part.  156;  Rawle  on  Covenants,  473,  474, 
475>477;  I'Veem.  on  Co-ten.  533,  534;  Walker  -u.  Hall,  15  Ohio, 
355  ;  4  Kent.  367  ;  Bridges  2/.  Howard.  18  Iowa,  116. 

12  Thomson  Gas.  2  Green  Ch.  637. 


438  THE    LAW    OF    PARTITION. 

the  trial;  otherwise,  if  the  subsequent  proceedings  are  in 
accordance  with  the  interlocutory  judgment  and  in  obe- 
dience thereto,  those  proceedings  will  not  be  disturbed 
by  the  court.  " 

The  appellate  court  upon  review  may  examine  into 
the  correctness  of  the  principle  upon  which  the  court  be- 
low rendered  its  decree.  Where  the  equities  of  the  case 
g"ive  some  of  the  parties  an  interest  in  specific  parcels, 
they  are  entitled  to  have  the  actual  value  of  such  parcels 
ascertained  ;  and  a  judgment  directing  that  the  value  of 
the  parcels  assigned  on  account  of  such  equities,  should 
be  estimated  at  the  same  rate  as  the  other  parcels  bring 
upon  a  sale,  is  error,  unless  it  appears  by  the  record  that 
it  did  not  work  injustice.  The  principle  of  partition  is  the 
same  where  a  sale  is  necessary,  as  where  actual  partition 
is  made  ;  and  the  rights  of  the  parties  in  the  proceeds  of 
sale  are  the  same  as  in  the  lands  themselves.  "  A  judg- 
ment of  partition  is  not  defective  because  the  affidavits 
on  which  service  of  summons  by  publication  was 
ordered,  did  not  allege  the  non-residence  of  the 
parties  who  were  thus  served,  or  state  upon  informa- 
tion and  belief,  the  inability  to  find  them  within 
the  State.  It  is  enough  to  give  jurisdiction  that  the 
fact  that  the  defendants  could  not  with  due  diligence 
be  found  within  the  State,  appeared  to  the  satisfac- 
tion of  the  judge  to  whom  the  application  was  made.  '* 
A  lessee  of  lands,  the  reversion  in  fee  of  which  is  in  ten- 
ants in  common,  may,  upon  purchasing  a  part  of  the   re- 


's Taggart  v.  Hurlburt,  66  Barb.  553. 
1*  Warfield  v.  Crane,  4  Abb.  Ct.  App.  Dec.  525,  a7ite. 
15  Van  Wyck  v.  Hardy,  4  Abb.  Ct.  App.  Dec.  496.  See  1 1  Abb. 
Pr.  473 ;  20  How.  Pr.  222. 


REVIEW.  439 

version,  demand  a  partition,  even  though  it  will   necessa- 
rily result  in  a  sale  of  the  premises.  ^^ 

The  right  to  partition  is  imperative  and  absolutely  bind- 
ing upon  courts  of  equity,  where  a  case  is  fairly  brougiit 
within  the  law  authorizing  a  partition.  When  they  can 
grant  the  relief  demanded  in  the  petition,  they  are  bound 
to  do  so.  When  they  can  see  no  legal  objection,  it  is  a 
matter  of  right  which  the  petitioner  has  to  demand,  and 
of  duty  which  the  court  must  perform,  to  decree  a  parti- 
tion of  the  promises  set  forth  in  the  petition,  reserving,  of 
course,  by  virtue  of  the  law,  all  the  equities  of  the  case 
and  the  trial  of  the  whole  proceedings  from  the  com- 
mencement to  the  end.  The  rule  is  somewhat  general 
that  partition  cannot  be  had  of  an  estate  in  remainder.  " 
At  common  law,  parceners  only  were  compellable  to 
make  partition  by  writ,  but  the  benefit  of  that  writ  was 
afterwards  extended  to  joint  tenants  and  tenants  in  com- 
mon. ^^  In  England,  the  prevailing  rule  is  that  no  person 
has  the  right  to  require  any  court  to  enforce  a  compul- 
sory partition,  unless  he  has  an  estate  in  possession.  This 
rule  prevails  in  a  majority  of  the  United  States.  In  New 
York,  it  is  held  that  proceedings  in  partition  can  be  only 
by  the  party  who  has  an  estate  entitling  him  to  immedi- 
ate possession.  ^*  If  the  action  is  carried  on,  and  the  sale 
had  without  objection,  although  the  judgment  in  some 
respects  be  erroneous,  such  sale  would  confer  a  perfect 
title  upon  the  purchaser ;  ^°  and  the  court  will  not  review 
or  set  aside  the  judgment  under  such  circumstances. 

16  Hill  V.  Reno,  54  Am.  R.  222;  112  111.  154. 

17  Wood  V.  Sugg,  49  Am.  R.  639;  91  N.  C.  93. 

18  31  &  32  Henry  VHI. 

13  IJrownell  v.  Brownell,  19  Wend.  367.     See  Ex  parte  Miller, 
90  N.  C.  625  ;  36  N.  H.  327  ;  8  Id.  93. 
20  Blakeley  z/.  Calder,  i   Smith,  617. 


440  THE    LAW    OF    PARTITION. 

All  the  lands  held  in  common  by  the  parties  need  not 
be  included  in  the  bill  in  the  action.  If  a  party  conceives 
that  he  will  suffer  because  a  portion  of  the  lands  held  in 
common  has  been  omitted,  he  can,  by  proper  pleading, 
have  all  the  lands  so  held  in  common  disposed  of  in  one 
suit.  Such  pleading  is  essential.  When  a  portion  of  the 
premises  have  been  omitted  in  the  first  pleading  or  com- 
plaint, it  can  be  amended.  The  omission  of  such  land  is 
not  a  proper  ground  for  setting  aside  the  sale  and  order- 
ing a  resale.  In  an  action  of  partition,  the  interest  of  one 
tenant  in  common  may  beset  off  to  him  in  land,  although 
the  balance  of  the  land  is  held  by  so  many  tenants  in 
common  that  it  will  be  to  their  interest  to  order  a  sale 
of  their  shares.  ^^  Neither  is  it  sufficient  ground  to  set 
aside  a  sale  because  the  sale  was  made  on  the  day  of  a 
charter  election,  the  statute  forbidding  the  courts  to  open, 
or  transact  business,  in  any  city  or  town,  on  the  day  of 
elections,  for  other  than  town  or  militia  officers.  "^  A  judi- 
cial sale,  although  conducted  by  one  of  the  officers  of  the 
court,  and  under  its  direction,  is  not  the  business  of  a 
court,  within  the  meaning  of  that  statute.  "  Want  of 
knowledge  of  the  time  and  place  of  the  sale,  on  the  part 
of  one  who  was  a  party  to  the  foreclosure  suit,  and  was 
therefore  bound  to  use  due  diligence  in  obtaining  informa- 
tion of  the  sale  in  order  to  protect  his  rights,  does  not 
afford  sufficient  reason  for  setting  the  sale  aside.  ■*  Nei- 
ther will  a  sale  be  set  aside  because  a  guardian  of  infants 
interested    therein  refuses  to  attend  the  sale,    unless  it 

21  Jackson  v.  Beach,  2  Cent.  R.  261  ;  citing  Allnatt  on  Part.  48  ; 
5  Com.  tit.  "  Pleadings,"  3;  Watson  z>.  Kelty,  i  Harr.  517,  522. 

22  N.  Y.  R.  S.  5  ed.  148. 12  4.  5- 

23  King  V.  Piatt,  37  N.  Y.  153. 

2*  McCotter  v.  Jay,  30  N.  Y.  80. 


REVIEW.  441 

appears  that  such  non-attendance  was  the  cause  of 
the  property  selUng  at  a  less  price  than  it  would  have 
brought  if  he  had  attended  the  sale.  -°  A  decree  for  the 
sale  of  real  estate  by  a  trustee  for  purposes  of  partition 
cannot  be  reviewed  for  defects,  errors  or  irregularities,  in 
the  proceedings,  though  apparent  on  their  face,  by  ex- 
ceptions  on^  the  order  ratifying  the  sale.  Such  defects, 
errors  or  irregularities,  if  they  exist,  can  only  be  reached 
and  corrected  by  a  direct  appeal  from  the  decree,  or  by  a 
bill  of  review  for  errors  apparent.  The  title  must  be 
clearly  established  by  the  evidence.  The  court  has  juris- 
diction of  all  questions  arising  upon  the  merits  for  judg- 
ment by  default.  The  question  of  jurisdiction  is  not 
usually  open,  and  the  court  cannot  examine  into  the 
merits  of  a  decree  collaterally,  if  the  courts  passing  the 
decree  had  jurisdiction.  The  principle  that  where  the 
title  is  in  dispute,  or  where  the  legal  title  is  doubtful,  the 
complainant  should  be  sent  to  a  court  of  law  to  establish 
his  title,  only  applies  where  the  bill  shows  clearly  a  dis- 
pute of  title,  or  where  the  defendant  has  answered  and 
alleged,  or  shows  such  dispute  of  title.  "* 

The  regularity  of  a  judicial  sale  cannot  be  questioned 
collaterally,  except  on  the  ground  of  some  fraud  in  which 
the  purchaser  was  a  participant.  The  requisites  required 
by  law  are,  in  general,  conditions  precedent,  and  their 
performance  is  essential  to  the  validity  of  an  offer  of  sale. 
But  where  it  appears  by  the  record  that  the  law  has  been 

25  Stryker  v.  Storm,  i  Abb.  Pr.  N.  S.  424. 

2«  Slingluff  V.  Stanley,  5  Cent.  R.  609 ;  Boone  v.  Boone,  3  Md. 
Ch.  Dec.  497  ;  Campbell  v.  Lowe,  9  Md.  508  ;  Wilkin  v.  Wilkin,  i 
Johns.  Ch.  iii;  Cooper  v.  Roche,  36  Md.  563;  Manton  v.  Hoyt, 
43  Md.  264;  Davis  2/.  Helbig,  27  Md.  457  ;  Hunter  v.  Hatton,  4 
Gill,  122;  Chesapeake  &  Ohio  Canal  Co.  v.  Young,  3  Md. 
480. 


442  THE    LAW    OF    PARTITION, 

complied  with,  the  title  of  the  purchaser  cannot  be  im- 
peached in  a  collateral  proceeding,  although  the  record 
does  not  show  affirmatively  that  every  step  was  taken 
which  was  required  by  law,  in  the  making  of  such  sale.  If 
the  record  contains  proper  averments  of  citizenship  to  give 
a  certain  court  of  the  United  States  jurisdiction,  a  title 
made  by  the  marshal  under  the  judgment  cannot  be  at- 
tacked collaterally  by  proof  that  the  averments  as  to  cit- 
izenship were  not  true,  and  that  the  court  had  not  juris- 
diction in  fact.  "  The  court  will  set  aside  a  sale  made 
under  its  decree,  if  not  fairly  made;  "  but  not  on  the 
ground  of  inadequacy  of  price  alone.  "'  But  will  set 
aside  a  sale  made  by  the  marshal  under  an  erroneous 
description  of  the  lands.  ^^  It  is  no  objection  to  the  sale 
that  the  deed,  by  direction  of  the  purchaser,  was  made  to 
a  third  person.  " 

27  Voorhees  v.  Bank  of  United  States,  lo  Pet.  449;  Erwin  v- 
Lowry,  7  How.  U.  S.  172;  Griffith  v.  Bogert,  18  How.  U.  S.  158. 
See  9  Mo.  722  ;  12  Id.  239;  16  Id.  68  ;  17  Id.  71. 

28  Bank  Alexandria  v.  Taylor,  5  Cranch  C.  Ct.  314. 

29  West  V.  Davis,  4  McLean,  241. 

30  McPherson  v.  Foster,  4  Wash.  C.  Ct.  45. 

31  Voorhees  v.  Bank  of  Uuited  States,  10  Pet.  449,  ante. 


CHAPTER  XXXI. 


LIMITATION   OF   ACTION. 


The  New  York  Code  makes  provision  that  an  action 
for  the  recovery  of  real  property,  or  the  possession  there- 
of, cannot  be  maintained  by  a  party,  other  than  the  peo- 
ple, unless  the  plaintiff,  his  ancestor,  predecessor  or 
grantor,  was  seized  or  had  possession  of  the  premises  which 
are  the  subject  of  the  action,  within  twenty  years  before 
the  commencement  of  the  action;  and  that  a  defense  or 
counter-claim  founded  upon  the  title  to  real  property,  or 
founded  upon  a  demand  to  rents  or  services  arising  out  of 
the  same,  must  be  plead  within  twenty  years  from  the 
time  when  such  right  of  action  accrues;  and  that  such 
defense  or  counter-claim  is  not  effectual,  unless  the  person 
making  it,  or  under  whose  title  it  is  made,  or  his  prede- 
cessor, ancestor  or  grantor,  was  seized  or  possessed  of  the 
premises  in  question,  within  twenty  years  before  the  com- 
mission of  the  act  out  of  which  the  right  of  action  ac- 
crued.' 

This  rule  ir.  relation  to  the  recovery  of  real  property, 
or  the  possession  of  the  same,  is  different  when  the  people 
or  commonwealth  of  the  State  bring  the  action;  but  in 

1  N.  Y.  Code  Civ.  Pro.  ^  365,  366. 

[443] 


444  THE    LAW    OF    PARTITION. 

regard  to  individuals  the  rule  is  general  in  New  York  that 
twenty  years  is  the  limit  of  the  statute  of  limitations,  and 
the  action  must  be  brought  within  that  length  of  time, 
dating  from  the  time  the  cause  of  action  accrues.  Where 
title  of  land  has  been  acquired  by  twenty  years'  actual 
adverse  possession,  it  is  equally  as  strong  as  a  title  ob- 
tained by  grant,  and  is  not  forfeited  by  an  interruption  of 
the  actual  occupation  thereafter.  The  grantor  with  war- 
ranty may,  subsequent  to  the  delivery  of  his  grant,  orig- 
inate an  adverse  possession,  and  is  not  estopped  from  as- 
serting the  same  by  a  covenant  of  warranty.  Such  ad- 
verse possession  is  an  effectual  bar  to  an  action  of  eject- 
ment. ^  Acquiescence  on  the  part  of  those  afterwards 
claiming  title  may  enter  in  and  become  an  element  in 
favor  of  those  who  are  claiming  the  title  adversely,  and 
such  acquiescence  may  be  conclusive.  ' 

The  doctrine  that  a  grantee,  who  has  entered  under  a 
conveyance  from  his  grantor,  may  lose  his  title  by  an 
adverse  possession  of  his  grantor,  and  the  grantor  may 
thus  claim  to  hold  adversely  to  the  grantee,  is  settled, 
and  upheld  by  well-considered  cases  in  different  States.  "• 

2  Sherman  v.  Kane,  86  N.  Y.  57;  East  River  Nat.  Bank  v. 
Gove,  57  Id.  597  ;  Sherry  v.  Frecking,4  Duer,  452  ;  Finlay  v.  Cook, 
54  Barb.  9  ;  Dempsey  v.  Kipp,  61  Id.  462  ;  Traip  v.  Traip,  57  Me. 
268 ;  Tilton  v.  Emery,  17  N.  H.  536  ;  Stern  v.  Hendersass,  9  Cush. 
497;  Smith  V.  Montes,  11  Tex.  24;  Zeller's  Lessee  v.  Eckert,  4 
How.  U.  S.  289;  Ricard  v.  Williams.  7  Wheat.  60.  See  19  Hun, 
273;  9  Watts,  363;  9  Cow.  530;  10  Pa.  St.  236;  39  Conn.  94;  10 
Pet.  432  ;  10  Pick.  447. 

3  Gillespie  2/.  Torrance,  4  Bosw.  36;  Jackson  v.  Rowen,  i 
Gaines,  358  ;  Sneed  v.  Osborn,  25  Cal.  619  ;  Cutler  v.  Allison,  72 
111.  113;  Davis  z/.  Babcock,  46  Vt.  655;  Coylez/.  Cleary,  116  Mass. 
208. 

4  Traip  v.  Traip,  57  Me.  268,  atite ;  Tilton  v,  Emery,  17  N.  H. 
536  ,  Stearns  v.  Hendersass.  9  Cush.  497  ;  Holland  v.  Jackson,  i 
Bridgeman,  'j'j. 


LIMITATION    OF    ACTION. 


445 


In  those  States  where  there  must  be  a  right  of  possession, 
and  where  the  statutory  or  code  rules  do    not  allow  the 
question  of  title  or  possession  to  be  considered  in  a  parti- 
tion   suit,  it   would  seem  that  this  rule  would   not   apply. 
But  in  those  States  where  the  courts  estimate  under  their 
own    practice    that  all  questions  that  are  in  the    case  are 
before    the    court  ;  that   the   court  can  try  titles  and  the 
rights  of  the  parties  to  possession,  and    decide   whether 
the   lands  are  held  adversely  or  not,  then  the  question  of 
the  limitation  of  the  action  would  be  raised,  and  the  stat- 
ute of  limitation,  so  far  as  the  same  is  applicable  to  ques- 
tions  pertaining   to   real  property;   would   apply,    unless 
there    should  be  some  other  statute  or  rule  especially  di- 
vesting an   action   of  partition  from  any  of  the   terms  or 
conditions  of  the  statute  of  limitation.     In  New  York  the 
limitation  in  regard  to  actions  pertaining  to  real  property, 
or  the  rents  and  profits  of  real  property,  applicable  to  citi- 
zens,  does  not  apply  where  the  State  is  a  party  to  the 
action.     The  rule  enlarging  the  time  of  limitation,  where 
the  State  is  not  interested  in  the  lands,  is  a  just  one.     Of- 
tentimes, lands  may  be   held  adversely  to  the  interest  of 
the  State  in  such  a  manner  that  the  State  is  not   cogniz- 
ant of  the  facts,  so  that  an  extension  of  the  rule,  so  far 
as   the   people  of  the  State  is  concerned,  is  but  a  benefi- 
cent  extension,  giving  to  the  people  that  right  to  which 
in  justice  they  are  entitled  for  their  own  protection.     The 
people  of  the  State  of  New  York  are  prohibited  from  su- 
ing a  person   for  or  with   respect  to  real  property,  or  the 
issues  or  profits  of  such  real  property,  by  reason  of  the 
right  or  title  of  the  people  to  the  same,  unless  the  cause 
of  action  shall  have  accrued  within  forty  years  before  the 
action  is  commenced,  or  the  people,  or  those  from  whom 
the   people  derive  their  interest  in  the  property,  have  re- 


446  THE    LAW    OF    PARTITION. 

ceived    the   rents  and  profits  of  the  real  property,  or    of 
some  part  thereof,  within  the  same  period  of  time.  ° 

The  twenty  years'  and  not  the  ten  years'  Hmitation, 
applies  in  partition  actions.  The  right  of  the  owner  is 
not  barred  under  the  Code  of  Procedure  by  a  ten  years' 
possession.  A  clear  adverse  possession  for  twenty  years 
makes  a  title  to  lands  which  a  purchaser  upon  a  parti- 
tion sale  may  not  refuse  ;  he  will,  however,  be  required 
to  take  title  where  there  are  circumstances  which  may 
prevent  the  possession  from  being  adverse.  Such  a  pur- 
chaser will  not  be  compelled  to  complete  the  purchase 
where  there  is  some  reasonable  ground  or  evidence 
shown  in  support  of  an  objection  to  the  title,  or  where 
the  title  depends  upon  a  matter  of  fact  which  is  not  capa- 
ble of  satisfactory  proof,  or,  if  capable  of  that  proof,  yet 
it  is  not  so  proved."  A  conveyance  from  any  third 
person  claiming  under  some  other  title  may  be  offered  in 
evidence  by  a  defendant  who  has  plead  the  statute 
of  limitations  against  his  co-tenant  ;  and  when  offered,  it 
may  be  received  by  the  court  in  support  of  the  plea  of 
an  adverse  holding  of  the  premises,  and  not  for  the  pur- 
pose of  supporting  an  assault  on  the  common  title.  An 
ouster  alone  of  a  tenant  never  constitutes  a  bar  ;  it 
merely  drives  him  to  his  legal  remedy  to  gain  possession. 
An  adverse  possession  may  be  set  up  in  bar  of  a  recovery, 
when  no  other  disabilities  exist,  providing  such  possession 
under  such  title  is  hostile,  in  its  inception,  to  the  rights  of 


5  N.  Y.  Code  Civ.  Pro.  ^  362 ;  Shriver  v.  Shriver,  86  N.  Y. 
576;  People  V.  Van  Rensselaer,  8  Barb.  189;  United  States  v. 
White,  2  Hill,  59  ;  People tv.  Trinity  Church,  22  N.  Y.  44. 

6  Shriver  v.  Shriver,  86  N.  Y.  575  ;  Seymour  v.  De  Lancey, 
Hopk.  Ch.  436.     See  Miner  v.  Beekman,  50  N.  Y.  337. 


LIMITATION    OF    ACTION.  447 

the  claimants,  and  is  continued  for  a   sufficient   length  of 
time." 

The  statute  of  limitations  gives  a  remedy  that  may  be 
used  in  defense  where  parties  have  been  engaged  in 
a  joint  undertaking,  and  either  one  or  all  of  them  have 
received  money  or  property  which  should  be  accounted 
for  to  the  other  as  tenant  in  common  of  the  real  property 
or  of  personal  property/  Where  one  tenant  of  real  estate 
takes  from  his  co-tenant  a  lease  of  the  premises  held  in 
common  for  a  term  of  years,  and,  after  the  expiration  of 
the  term,  continues  in  possession,  without  any  new 
express  agreement  between  the  parties,  or  any  claim  by 
him  to  be  exclusively  entitled  to  the  possession,  or  any  act 
done  to  prevent  a  joint  occupation  by  his  co-tenant,  the 
latter  cannot  recover  of  him  for  the  use  and  occupation  of 
the  premises,  after  the  expiration  of  the  term.  The 
statute  allowing  an  action  of  account,  or  for  money  had 
and  received,  to  be  maintained  by  one  joint  tenant  or  ten- 
ant in  common,  against  his  co-tenant,  for  receiving  more 
than  his  full  proportion,  applies  to  cases  where  rent,  or 
payment  of  money,  or  in  kind,  is  received  from  a  third 
party  by  one  co-tenant,  who  retains  for  his  own  use  the 
whole,  or  more  than  his  proportional  share,  and  not  to  a 
case  where  one  tenant  in  common  solely  occupies  the 
land,  and  farms  it  at  his  own  cost,  and  takes  the  produce 
for  his  own  benefit.  A  tenant  in  common  who  takes  a 
lease   of  his   co-tenant's  moiety  of  the   land   for  a  term 

7  Phelan  v.  Kelly,  25  Wend.  389  ;  Freem.  on  Co-Ten.  153.  See 
7  Cow.  637;  7  Johns.  157;  10  Id.  292. 

8  Wood  on  Limitations,  §  24,  p.  57  ;  Thomas  v.  Thomas,  5 
Exch.  28;  Barnum  v.  Landon,  25  Conn.  137  ;  Lacon  v.  Davenport. 
16  Id,  331  ;  Oviatt  v.  Sage,  7  Id.  95  ;  Wiswell  v.  Wilkins,  4 
Vt.  137. 


448  THE   LAW    OF    PARTITION. 

subject  to  a  specified  rent,  and  then  continues  in  posses- 
sion of  the  premises  after  the  expiration  of  his  term,  will 
not  be  considered  as  holding  over  under  the  lease,  and 
thus  liable  to  an  action  for  use  and  occupation.  In  such 
cases,  the  presumption  of  the  law  is,  that  he  is  in  posses- 
sion under  his  own  title  ;  and  such  presumption  will  pre- 
vail, unless  there  should  be  evidence  presented  that  he 
holds  the  same  as  a  tenant  of  his  co-tenant.^  To  take 
advantage  of  the  statute  of  limitations,  it  is  necessary 
that  it  should  be  set  forth  in  the  defendant's  allegation  or 
answer,  as  the  court  must  know  exactly  what  questions 
it  has  to  pass  upon,  and  questions  of  so  serious  nature  as 
the  statute  of  limitations  must  be  first  presented  to  the 
court  by  the  pleadings.^" 

The  limitation  law  in  reference  to  the  payment  of 
taxes  and  possession  for  seven  years  under  claim  and 
color  of  title,  does  not,  as  a  general  rule,  run  as  between 
tenants  in  common.  To  establish  a  bar  under  such  law, 
the  possession  and  the  payment  of  taxes  must  relate  to 
the  same  land  which  is  described  in  the  instrument 
introduced  as  claim  and  color  of  title.  The  statute 
does  not  run  as  between  tenants  in  common,  on  the 
ground  that  the  possession  of  one  tenant  in  common 
is  the  possession  of  all  ;  and  especially  so  where  all  the 
parties  derive  title  from  the  same  source  or  deed."  A 
person  who  takes  by  descent  as  a   co-heir   and  tenant  in 

9  Dresser  -v.  Dresser,  40  Barb.  300;  Woolever  v.  Knapp,  18 
Barb.  265  ;  Henderson  v.  Eason,  9  E,  L.  &  Eq.  337  ;  Sargent  v. 
Parsons,  12  Mass.  149;  McKay  v.  Mumford,  10  Wend.  351  ;  Baxter 
V.  Hozier,  5  Bing.  288. 

if'Sturton  V.  Richardson,  13  M.  &  W.  17. 

11  Cooter  7^.  Dearborn,  2  West.  R.  399,  ante  ;  Duganz*.  Follett, 
100  111.  588;  Busch  V.  Huston,  75  111.  343;  Ball  v.  Palmer,  81  111. 
370. 


LIMITATION    OF    ACTION.  449 

common,  in  ejectment  by  his  co-lieir,  or  one  claiming 
under  him,  cannot  show  that  the  ancestor  had  no  title. ^^ 
The  time  of  limitation  fixed  by  statute  is  different 
among  the  States  of  the  Union  ;  some  fix  a  less,  and 
some  a  greater  time  :  but  the  general  law  in  questions  of 
equity  is  the  same,  taking  into  consideration,  of  course, 
the  term  fixed  by  the  statute.  The  statute  of  limitations 
in  Illinois  does  not  bar  relief  between  tenants  in  common 
of  the  lands  in  an  action  of  partition.  But  in  that  State, 
a  delay  of  twelve  years  until  after  the  death  of  an  ances- 
tor of  a  party  who  could  have  defended  against  the 
claim  with  a  fuller  knowledge  of  the  facts  than  his  heirs 
can  do,  operates  against  the  assertion  of  the  claim.^^  The 
courts  of  lUinois  do  not  decide  that  such  delay  is  an 
actual  bar  to  the  assertion  of  the  claim,  but  that  it  rather 
operates  against  it.  The  idea  is  that  the  party  trying  to 
establish  such  a  claim  after  the  lapse  of  so  great  a  time, 
is  to  a  certain  extent  guilty  of  laches,  and  being  guilty  of 
laches,  the  equities  of  the  case  are  not  so  favorable  to 
him,  as  if  he  had  presented  his  claim  within  a  lesser  time,, 
and  within  a  time  when  a  more  full  knowledge  of  the 
facts  could  have  been  presented  to  the  courts.  Possession, 
with  or  without  a  valid  deed,  or  under  a  claim  of  title,  is 
adverse.  It  seems,  that  in  New  York  an  adverse  possess- 
ion, taken  in  fraud  of  the  true  owner,  will  not  avail  to  bar 
his  right  of  entry,  though  the  same  may  have  been  con- 
tinued for  twenty  years.  But,  on  the  other  hand,  a  mere 
neglect  to  inquire  into  a  title  by  the  purchaser,  is  not  a 
fraud  upon  the  owner.  Nor  should  notice  of  a  defect  in 
the  title  be  imputed  to   a   purchaser  because  he  is  negli- 

12  Jackson  v.  Streeter,    5   Cow.    529.     See   4   Wend.    589 ;  1 1 
Id.  427  ;  41  Barb.  81. 

13  Co.Tier  V.  Comer,  6  West.  R.  72. 

29 


450  THE    LAW    OF    PARTITION. 

gent,  so  as  to  preclude  him  the  benefit  of  the  statute  of 
limitations.  Though  the  title  of  an  adverse  possessor  be 
clearly  defective,  yet  the  true  owner  must  bring-  his  action 
within  twenty  years,  or  he  is  barred  of  his  right  of  entry. 
The  rule  that  what  is  sufficient  to  put  a  party  upon 
inquiry  shall  operate  as  a  notice  to  him,  does  not  apply 
to  a  purchaser  who  claims  under  the  statute  of  limitations. 
Clear  and  positive  proof  is,  in  such  case,  necessary,  of 
notice  that  the  title  supposed  to  be  acquired  is  bad, 
accompanied  with  proof  of  an  intent  to  defraud  the  real 
owner."  Some  cases  have  gone  so  far  as  to  hold  that 
even  if  the  action  would  be  barred  by  an  adverse  possess- 
ion of  twenty  years,  yet  such  possession  is  negatived  by 
the  evidence,  plea  and  the  verdict.^^ 

The  question  of  adverse  possession  is  usually  consid- 
ered a  question  for  the  jury  to  decide,  and  not  a  question 
of  law  for  the  court  ;  and  their  verdict  should  be  brought 
up  by  a  bill  of  exceptions,  and  cannot  be  reversed  on  the 
allegation  that  it  is  against  evidence  only.  A  bill  of 
exceptions  must  not  be  on  controverted  facts  ;  but  the 
jury  alone  are  to  draw  the  presumption  from  facts."  This 
rule  may  be  somewhat  changed  by  the  change  in  practice 
in  different  States  since  it  was  first  laid  down  as  set  forth 
in  the  cases  referred  to.  But  the  rule  can  be  considered 
as  general  that  a  jury  alone  are  to  draw  the  presumption 
from  the  facts, — that  is,  the  jury  are  to  settle  what  the 
facts  are,  the  court  deciding  the  questions  of  law  only.  Of 
course,  in  a  case  that  did  not  go  to  a  jury,  as  is  the  case 


1*  Clapp  7A  Bromagham,  9  Cow,  530;    Doe  -u.   Prosser,  Cowp. 
217  ;  Ricard  v.  Williams,  7  Wheat.  59,  ante. 

15  5  Cow.  74;  2  Bibb.  416  ;  12  Mass.  235  ;  4  Id.  378. 

16  2  Cal.  168  ;  I  East.  R.  568 ;  9  Johns.  102  ;  11  Wheat.  276 ;  2 
Bay,  483. 


LIMITATION    OF    ACTION.  451 

in  a  majority  of  actions  for  partition,  it  is  then  for  the 
referee,  or  the  court  before  whom  the  action  is  tried,  to 
decide  what  the  facts  are  ;  then  there  is  no  jury,  and  the 
court  has  jurisdiction  of  all  questions  arising  in  the  case, 
and  must,  in  its  decision,  pass  upon  those  questions. 

The  courts,  as  a  usual  rule,  compel  a  party  to  bear  the 
injuries  caused  to  him  by  his  own  laches  and  negligence. 
Laches  and  neglect  are  discountenanced  in  courts  of 
equity  ;  and  even  to  such  an  extent,  that,  even  where 
claims  are  not  barred  by  the  statute  of  limitations,  a 
court  will  refuse  to  interfere  after  a  considerable  lapse  of 
time,  from  considerations  of  public  policy,  and  from  the 
difficulty  of  doing  entire  justice  between  the  parties,  when 
the  original  action  may  have  become  obscure  by  time, 
and  the  evidence  may  have  been  lost."  The  statute  of 
limitations  applies  with  equal  force  in  cases  of  concurrent 
jurisdiction, — that  is,  cases  in  which  a  party  may  pro- 
ceed either  in  law  or  in  equity,  and  where  the  nature  of 
such  action  may  be  an  equitable  action,  or  one  of  which 
courts  of  law  would  have  jurisdiction."  In  some  States 
the  statute  of  limitations  applies  to  all  kinds  of  actions, 
whether  legal  or  equitable,  and,  in  such  cases,  is  obliga- 
tory upon  the  courts  in  a  suit  in  equity  as  in  an  action  at 
law.^^  The  construction  which  the  courts  must  place 
upon  it,  must  be   such  as  to  bring  forth  as  far  as  possible 

17  Harcourt  v.  White,  28  Beav.  303;  McDonald  v.  White,  11 
H.  L.  Cas.  570  ;  Hunt  -v.  Ellison,  32  Ala.  173  ;  Wilson  v.  Anthony, 
18  Ark.  16  ;  Palmer  v.  Malone,  i  Heisk.  549  ;  New  Albany  v.  Burke. 
11  Wall.  96  ;  Badger  v.  Badger,  2  Clif.  137  ;  Sherwood  -v.  Sutton. 
5  Mas.  C.  C.  146 ;  Sloan  ?'.  Graham,  85  111.  27. 

18  Teackle  v.  Gibson,  8  Md.  70  ;  Crocker  v.  Clements,  23  Ala. 
296;  Bailey  v.  Carter,  7  Ired.  282. 

10  White  V.  Sheldon,  4  Nev.  280  ;  Rogers  v.  Brown,  61  Mo.  187. 


452  THE    LAW    OF    PARTITION. 

the  intention  of  the  Legislature  enacting  the  law  ;  and 
it  should  be  construed, — that  is,  if  such  a  construction  can 
be  placed  upon  it, — in  accordance  with  the  usual  mean- 
of  the  words  of  the  statute.^" 

Possession  for  more  than  twenty  years,  under  an 
adverse  title,  bars  relief  in  equity,  unless  complainants 
labor  under  some  disability.  Where  a  right  of  action 
has  once  accrued  to  a  person  laboring  und::r  a  disability, 
and  that  disability  is  removed,  or  the  person  disabled 
dies,  those  to  whom  the  estate  descends,  though  then 
laboring  under  a  disability,  are  not  protected  by  the 
statute,  and  such  successive  disabilities  are  forbidden  by 
the  statute.-'  An  adverse  possession  of  lands  for  twenty 
years  operates  as  an  equitable  bar.  An  adverse  possess- 
ion that  has  continued  for  twenty  years  constitutes  a 
complete  bar  in  equity,  wherever  an  ejectment  would  be 
barred,  if  the  plaintiff  possess  a  legal  title." 

The  statute  of  limitations  operates  in  causes  of  action 
existing  in  favor  of  one  co-tenant  and  against  another,  to 
the  same  extent  that  it  operates  in  actions  between  in- 
dividuals where  the  relationship  of  co-tenancy  does  not 
exist.  There  has  been  a  difficulty  in  fixing  the  exact 
time  when  the  statute  begins  to  run  as  between  tenants. 
The  general  idea  has  been  to  treat  co-tenants  the  same 
as  if  that  relationship  did  not  not  exist  between  them. 
And  in  the  majority  of  cases  the  same  rule  relative  to  the 
limitation  of  time  is  applicable.     The  statute  can  hardly 


20  Treadway  7'.  Wilder,  12  Nev.  108  ;  Wilcox  v.  Williams,  5  Id. 
206. 

21  Floyd  V.  Johnson,  2  Litt.  112. 

22  Elmendorf  v.  Taylor,  10  Wheat.  150  ;  Cook  v.  Arnham,  3  P. 
Williams,  283.     See  3  Atk.  225  ;  2  Jac.  &  Walk.  138. 


LIMITATION    OF    ACTION.  453 

run  so  as  to  debar  one  co-tenant  of  his  right  of  partition 
against  another.  The  exception  to  these  cases  is  where 
there  is  an  adverse  possession  upon  the  part  of  one  or 
more  of  the  co-tenants  as  against  the  others,  which  by- 
lapse  of  time  debars  the  others  from  asserting  their  right 
or  claim  to  partition,  and  the  adverse  possession  finally 
becomes  the  title  to  the  premises.  It  can  also  apply  be- 
tween tenants  in  common  upon  questions  of  accounting. 
Where  relief  is  demanded  for  rents  and  profits,  use  or 
occupation,  with  those  elements  entirely  out  of  the  case, 
— that  is,  there  being  no  adverse  possession  and  no  ques- 
tions arising  in  regard  to  rents  and  profits,  use  or  occu- 
pation,— and  leaving  the  only  element  in  the  case  that  of 
ownership,  and  the  right  to  carve  out  and  separate  the 
ownership  into  individual  parcels,  or  to  sell  the  owner- 
ship in  common,  and  divide  the  proceeds  of  such  sale,  the 
statute  of  limitations  would  not  apply,  as  partition  is  a 
right  given  both  by  the  common  and  statutory  law, 
which  right  cannot  be  taken  away,  except  where  these 
adverse  questions  arise  in  the  case,  which  debar  the  right 
of  action,  or  the  right  of  partition,  until  those  questions 
shall  have  been  settled.  The  statute  of  limitations  does 
not  commence  running,  in  the  case  of  tenants  in  common, 
until  the  relation  of  such  co-tenants  has  been  determined 
by  partition,  or  until  there  has  been  a  demand  of  some 
nature  for  an  account,  and  the  right  to  which  the  one 
making  the  demand  is  entitled,  has  been  denied,  or  until 
the  adverse  possession  actually  commenced.  It  has  been 
laid  down  as  the  rule  that  there  cannot  be  such  an  adver- 
sary possession  as  to  make  the  statute  run,  in  reference 
to  the  right  to  an  account  of  the  profits,  when  it  does  not 
also  run  in  reference  to  the  right  of  possession,  which  can 
only  be  when  there  is  an  ouster,  really  made  or  presumed 


454  THE    LAW    OF    PARTITION. 

from  lapse  of  time.  "  It  is  not  necessary  to  show  when 
the  right  to  the  action  of  partition  accrued,  and  it  need 
not  be  set  forth  in  the  complaint,  as  the  statute  of  limita- 
tions has  no  application  to  suits  for  partition,  except  so 
far  as  those  suits  may  be  governed  by  adverse  possession 
or  questions  arising  pertaining  to  rents,  issues,  profits, 
use  or  occupation,  or  other  questions  which  might  indi- 
rectly be  affected  by  the  statute  of  limitations.  "  * 

The  principal  element  of  title  is  possession.  Theoret- 
ically, title  is  the  right  of  possession,  and  becomes  a 
necessary  element  in  the  adjudication  of  all  questions 
pertaining  to  lands,  and  it  may  be  considered  a  sufficient 
statement  that  whoever  is  n  possession  of  real  property 
is  so  regarded  by  law  as  the  owner  thereof,  that  no  one 
can  disposses  him  of  the  same,  without  showing  some  well- 
founded  title  of  a  higher  and  better  character  than  such 
possession  itself  furnishes, — that  is,  that  when  one  is  in 
possession  of  lands  and  claims  ownership  thereto,  the  as- 
sumption is  that  he  has  the  title  to  the  land,  unless  a 
higher  and  better  title  can  be  produced.  -^  Possession^ 
however  naked,  may  become  an  absolute  title,  and  may 
become  conclusive  evidence  of  title  under  the   operation 

23  Freem.  on  Co-ten.  §  373  ;  Northcot  v.  Casper,  6  Ired.  306  ; 
Wagstaff  V.  Smith,  2  Dev.  264;  Huff  v.  McDonald,  22  Geo.  164  ; 
Tarleton  v.  Goldthwaite,  23  Ala.  358. 

24  Jenkins  v.  Dalton,  27    Ind.  78  ;   Freem.  on  Co-ten.  \  491. 
*For  statutory  provisions  in  regard  to  complaints  in  partition, 

see  R.  C.  Ala.  §  3498;  Ark.  Dig.  1884  ed.  4790;  C.  C.  P.  Cal. 
§753;  Col.  C.  §281;  Gen.  L.  Del.  528,^8;  Dig.  Fla.  McClellan's, 
801  ;  Ga.  C.  §  3996;  Iowa  C.  §  3278  ;  C.  P.  C.  Kan.  §§  614.  615  ;  Ky. 
C.  §  499  ;  R.  S.  Me.  ed.  1883,  p.  749,  §  2  ;  2  Comp.  L.  Mich.  §  7853  ; 
Gen,  S.  Mass.  1029,25;  S.  Minn.  803 ;  Comp.  L.  Nev.  §1328; 
Gen.  S.  N.  H.  567  ;  S.  Ohio,  Williams',  §  5756  ;  L.  Oregon,  Deady, 
255  ;  C.  Tcnn.  4001 ;  Gen.  S.  Vt.  1277  ;  R.  S.  Tex.  1879,  §  3466;  R. 
S  'Wis.  §  3102. 

26  Wood  Civ.  L.  78,  126. 


LIMITATION    OF    ACTION.  455 

of  that  policy  of  the  law,  which,  for  the  better  state  of 
society,  and  the  peace  of  the  community,  will  not  allow  a 
possession  to  be  questioned  after  such  possession  shall 
have  been  enjoyed  for  so  great  a  length  of  time  as  to 
render  it  unreasonable  that  such  possession  was  held  un- 
der anything  different  from  a  proper  title  originating 
from  a  sufficient  ground  and  a  legitimate  source.  Such  a 
possession  answered  in  common  law  as  a  sufficient  seizin, 
and  implied  the  seizin  of  the  land  in  fee  simple.  In  com- 
mon law,  seizin  may  be  affirmed  of  any  freehold  estate, 
whether  of  inheritance  or  not.  Statutes  have  to  a  cer- 
tain extent  changed  the  common-law  principle,  and  made 
it  more  generally  equal  and  equitable  ;  but  the  element- 
ary processes,  which  were  the  ruling  elements  in  common 
law,  yet  remain  and  govern  under  the  statutes.  There 
can  be  but  one  actual  seizin  of  land.  This  seizin  may  be 
owned  as  a  co-tenancy,  and  that  co-tenacy  may  be  ad- 
verse to  another  ownership,  or  to  another  alleged  co-ten- 
ancy in  the  same  premises.  Two  individuals,  or  two  sets 
of  individuals,  as  co-tenants,  cannot  be  actually  seized  of 
the  same  land  claiming  it  by  title  adverse  to  each  other. 
One  or  the  other  must  be  entitled  to  the  right.  If  that 
remains  unsettled,  the  hostile  possession  continuing,  the 
law  supposes  and  assumes  that  those  hostile  rights  should 
be  litigated,  adjudicated  and  settled  within  a  reasonable 
length  of  time.  Upon  the  failure  of  the  parties  so  to  do, 
the  statute  of  limitations  by  lapse  of  time  will  settle  the 
question  as  to  the  seizin,  ownership  and  right  of  posses- 
sion in  the  premises.  Disseizin  and  ouster  mean  very 
much  the  same  thing  as  adverse  possession.  "'  When 
there  is  adverse  holding,  possession  follows  the  ownership 

20  Slater   v.  Rawson,  6  Mctc.  439  ;    Smith  v.  Burtis,  6    Johns. 
216. 


456  THE    LAW    OF    PARTITION. 

in  the  land,  and  the  right  of  possession  is  always  in  him 
who  has  the  disputed  title.  " 

There  is  a  seizin  by  deed,  and  a  seizin  in  law.  The 
difference  between  the  two  is,  that  in  the  case  of  the  deed 
actual  possession  has  been  taken,  is  undisputed,  and  is  an 
absolute  established  right  by  reason  of  the  deed  or  grant. 
In  the  other,  the  title  may  be  by  heirship  upon  descent 
from  an  ancestor.  In  such  case,  there  should  be  no  pos- 
session until  actual  entry,  or  in  other  words,  the  posses- 
sion would  be  vacant  until  an  actual  entry  upon  the  prem- 
ises by  virtue  of  such  heirship,  or  the  seizin  in  law,  may 
be  result  of  the  operation  of  time.  ^'  The  doctrine  of  ad- 
verse possession  rests  to  a  certain  extent  upon  the  ac- 
quiescence of  the  owner  ;  but  such  acquiescence  cannot 
be  presumed,  unless  such  owner  has  had  notice  of  the 
possession.  Actual  knowledge  to  him  of  the  possession 
must  be  shown  to  create  an  adverse  possession  to  him. 
The  decisions  upon  this  question  are  not  entirely  consis- 
tent, but  it  may  be  considered  as  a  somewhat  well-estab- 
lished rule  that  knowledge  of  the  possessory  holding  must 
be  had  before  adverse  possession  actually  exists.  "' 

The  statute  of  limitations  arises  from  prescription,  and 
in  consequence  of  which  no  action  can  be  maintained,  for 
the  recovery  of  any  real  property,  after  an  uninterrupted 
possession  of  a  certain  number  of  years.  The  statute  of 
limitations  is  somewhat  different  from  prescription,  al- 
though arising  to  a  certain  extent  therefrom.  By  the  one, 
the  right  is  acquired  to  an  incorporeal  hereditament ;    but 


27  Holley  V.  Hawley,  39  Vt.  531. 

28  Co.  Litt.  153;  2  Pres.  Ab.  282. 

29  Benje  v.  Creach,  21  Ala.  151  ;  33  Id.  47  ;  2  N.  H.  34  ;  Thomas 
V.  Lynch,  33  Conn.  330;  Alexander  v.  Polk,  39  Miss.  755. 


LIMITATION    OF    ACTION.  457 

by  the  statute  of  limitations  no  positive  or  absolute  right 
is  acquired,  but  the  remedy  for  the  recovery  of  either 
corporeal  or  incorporeal  hereditaments  is  absolutely  taken 
away  ;  and  for  that  reason  the  statute  of  limitations  may 
properly  be  called  a  negative  prescription.  An  entry 
can  only  be  made  where  there  is  an  existing  right  of 
possession.  When  the  right  of  possession  is  lost,  the 
right  of  entry  is  gone.  If  the  ri'  ht  of  possession  is  lost 
by  reason  of  lapse  of  time,  the  light  of  entry  ceases  at 
the  losing  of  the  right  of  possession  ;  and  the  action  for 
the  recovery  of  such  possession  cannot  be  maintained. 
The  statute  of  limitations  has  always  received  a  favorable 
construction  with  a  view  to  individual  possession. 

In  the  computation  of  time  limited  by  the  acts  of  lim- 
itation, it  is  to  be  computed  at  the  time  from  which  the 
right  of  entry  accrues,  or  the  time  from  which  an  action 
could  be  brought  for  the  settlement  or  adjudication  of  the 
disputed  rights.  '°  The  remedies  on  contracts  or  rights 
arising  under  the  statute  of  limitations,  or  governed  there- 
by, are  regulated,  and  the  practice  is  governed  by  the 
law  of  the  place  where  the  action  is  instituted,  and  not 
by  the  law  of  the  place  where  the  contract  is  made.  ^'  The 
statute  of  the  country  or  State  in  which  a  suit  is  brought 
may  be  pleaded  in  bar  of  a  recovery  on  a  contract  or 
cause  of  action,  made  out  or  arising  out  of  its  political 
jurisdiction,  and  the  statute  of  the  place  where  the  con- 
tract was  made  cannot  be  so  pleaded.  ^-  Of  course,  this 
rule  would  not  be  applicable  in  an  action  for  the  partition 


30  Ang.  on  Lim.  34 ;  Rhodes  v.  Smethurst,  4  M.  &  W.  42  ;  Wal- 
ling V.  Wheeler,  39  Tex.  480. 

31  Le  Roy  2/.  Crowninshield,  2  Mas.  C.  C.  151. 

32  Hendricks  v.  Comstock,  12  Ind.  238  ;  Fletcher  2^.  Spaulding, 
9  Minn.  64  ;  Bij^clow  v.  Ames,  18  Minn.  527  ;  Pcgram  v.  Williams, 
4  Rich.  219  ;  Orton  v.  Hunter,  18  W.  Va.  83. 


458  THE    LAW    OF    PARTITION. 

of  real  estate,  where  the  action  was  brought  in  any  of 
the  State  courts,  unless  there  should  be  a  contract  aris- 
ing in  the  action  pertaining  to  the  use  and  occupation  of 
the  lands,  or  personal  property  owned  by  the  parties  to 
the  action,  as  tenants  in  common  or  joint  tenants. 


I 


CHAPTER  XXXII. 


VOLUNTARY   PARTITION. 


Co-tenants  have  at  all  times  a  right  to  make  a  divi- 
sion of  their  property  held  in  common  among  themselves. 
The  law  will  uphold  such  division,  although  the  co-tenants 
may  not  have  agreed  upon  a  division  that  is  equitable.  If, 
after  the  voluntary  partition  shall  have  been  made,  it  is 
acquiesced  in  by  the  co-tenants,  and  no  fraud  or  collusion 
has  been  exercised  by  any  of  them  as  against  the  others, 
each  understanding  at  the  time  the  partition  was  made 
what  he  was  doing,  and  none  under  the  disability  of 
infancy,  lunacy  or  idiocy,  the  courts  will  hold  the  settle- 
ment and  division  as  sacred,  and  those  making  it  are 
bound  thereby.  This  partition  maybe  made  by  all  of  the 
co-tenants,  or,  on  the  other  hand,  they  may  carve  out  and 
set  apart  to  one  or  more  of  the  co-owners,  his  or  her 
share.  A  partition  is  voluntary  when  accomplished  by 
the  mutual  agreement  of  the  co-tenants,  one  with  the 
other.  The  rule  laid  down  by  Lord  Coke  is  as  follows: 
"  If  coparceners  make  partition,  at  full  age  and  unmarried, 
and  of  sane  memorie,  of  lands  in  fee  simple,  it  is  good  and 
firme  forever,  albeit  the  values  be  equal;  but  if  it  be  of 
lands  entailed,  or  if  any  of  the  coparceners  be  of  non  sane 
memorie,  it  shall  binde  the  parties  themselves,  but  not 
their  issues,  unless  it  be  equall;  or  if  any  be  covert,  it  shall 

[459] 


460  THE    LAW    OF    PARTITION. 

bind  the  husband  but  not  the  wife  or  her  heires,  or  if  any 
be  within  age,  it  shall  not  bind  the  infant."  ^ 

One  method  of  division  was  by  the  coparceners  select- 
ing some  of  their  friends  to  divide  the  land  in  severalty. 
In  this  selection  it  was  customary  for  the  eldest  sister, 
when  there  was  such,  to  have  the  first  choice,  and  the 
other  co-tenants  would  then  choose,  after  she  had  made 
her  choice,  in  the  order  of  their  seniority.  ^  After  the  per- 
sons had  been  chosen  among  the  friends  of  the  co-tenants 
as  aforesaid,  then  such  person  would  proceed  and  make  a 
division  of  the  lands.  It  was  supposed  to  be  their  duty 
to  allot  to  each  co-tenant  as  near  as  possible  his  or  her 
individual  share.  Such  practice,  although  not  customary 
at  present,  is  allowable.  The  court  would  consider  the 
friends  so  chosen  arbitrators  or  commissioners  duly  author- 
ized to  proceed  with  the  division  of  the  property,  and  the 
proper  allotment  of  the  same  after  such  division.  Such 
settlements  should  first  be  entered  into  by  a  written  con- 
tract between  the  co-tenants.  It  would  be  better  that 
such  contract  be  duly  executed  under  seal,  and 
acknowledged  as  instruments  are  acknowledged  for 
record.  Then,  after  the  allotment  shall  have  been  made, 
and  each  party  shall  have  deeded  to  the  other,  so  as  to 
carry  out  the  judgment  of  the  arbitrators  or  commission- 
ers so  chosen,  then  all  of  the  papers,  the  contract  and  the 
deeds,  should  be  placed  upon  record. 

Wives  of  co-tenants  should  join  with  their  husbands  in 
the  conveyances,  thus  placing  before  the  public,  and  espe- 
cially future  purchasers,  a  full  record  of  the  transaction, 
including  the  contract  and  the  deeds,  which  would  release 
all  inchoate  rights  of  dower.     Co-tenants   now  appoint 

1  Co.  Lit.  166  a. 

2  Litt.  §  244 ;  2  Cruise,  394 ;  Freem.  Co-ten.  §  349. 


VOLUNTARY    PARTITION.  46 1 

certain  persons  as  arbitrators  or  commissioners,  to  make 
partition  for  them,  though  it  is  not    generally  understood 
that    the    report    of  such    arbitrators    or    commissioners 
operates  upon  the  final  title,  it   being  advisable  to  com- 
mence the  transaction  of  voluntary  partition  by  a  con- 
tract between  the  co-tenants    appointing  such  commis- 
sioners and  by  deeds  of  conveyance  from  one  to  the  other, 
in  accordance  with  the  report  made  by  such  commission- 
ers, and  the  recording  of  all  the  papers,  thus  making  the 
title  properly  vested  in  each  co-tenant  of  his  or  her  share 
in  severalty.    The  result  of  which  is  that  the  whole  trans- 
action operates  upon  the  legal  title  and  shows  the  con- 
sideration  for  what  has  been  done.     The  law  does  not 
estimate  any  special  formality  to  bring  about  a  voluntary 
partition,  but  it  has  a  right  to  estimate  that  the  voluntary 
partition    shall    render    the    several    titles    clear  in  their 
respective   owners   after    the   allotment   or  choice   shall 
have  been  made.     The  co-tenants  themselves  may  divide 
the  land  in  respective  parcels,  such  as  in  their  judgment 
they  would  believe  to  be  about  an  equal  division.    If,  after 
such  division,  they  should  fail  to  agree  among  themselves 
as  to  what  particular  parcels  should  be  assigned  to  each 
co-tenant,  they  can  agree  to  settle  that   question  by  lot, 
and,  after  its  settlement,  if  then  they  enter  into  convey- 
ances with  each  other  in    accordance   with  the   division, 
and  in  accordance  with  the  settlement  by  lot,  such  parti- 
tion is  binding  and  will  be  held  sacred  by  the  courts,  pro- 
viding  the   circumstances    surrounding    the   co-tenancy 
were  such  that  all  of  them  could  enter  into  the  agreement. 
The   co-tenants  may  by  deed  nominate  and  appoint  cer- 
tain persons  as  arbitrators  to  make  the   partition,  and  to 
submit  to  the  award  made  by  them.    They  can  all  join  in 
a  deed  conveying  the  premises  in  question  to  certain  arbi- 


462  THE    LAW    OF    PARTITION. 

trators  chosen  by  them,  up>on  condition  that  the  arbi- 
trators reconvey  the  premises  in  parcels  and  in  severalty 
to  such  co-tenants,  which  deed  binds  such  co-tenants 
to  abide  by  the  conveyances  made  to  them  by  the 
arbitrators.  The  latter  is  rather  an  unnecessary  pro- 
ceeding, as  it  multiplies  paperj,  and,  perhaps,  might  mix 
titles. 

But  it  is  well  settled  that  a  deed  of  partition  may 
appoint  as  commissioners  certain  persons  agreed  upon  by 
the  co-tenants  to  make  the  division  of  the  lands  described 
in  such  deed,  and  to  allot  the  same  to  the  co-tenants 
according  to  their  individual  interests,  the  terms  of  such 
allotment  to  be  specified  in  the  deed.  The  deed  may  con- 
tain, in  addition,  words  of  release  and  conveyance  by  which 
the  several  co-tenants  mutually, and  for  the  consideration 
of  the  partition,  release  and  convey  to  each  other  the 
parts  which  may  be  allotted  by  the  commissioners,  such 
deed  to  become  in  full  force  and  take  effect  when  the 
commissioners  shall  file  their  report,  together  with  a  map, 
in  the  office  for  recording  deeds;  such  map  showing  the 
boundaries  and  indicating  each  of  the  several  allotments. 
When  such  a  map  is  filed  with  the  report  of  the  commis- 
sioners, the  deed  becomes  effectual  as  a  deed  in  partition 
and  release,  and  vests  in  each  co-tenant  in  severalty  both 
the  legal  and  equitable  title  to  the  premises  allotted  to 
him  or  her  by  the  commissioners.  ' 

The  above  methods  may  be  considered  by  reason  of 
custom  and  usage  almost  obsolete;  but  yet  it  is  safe  to 
say  that  when  either  of  those  methods  have  been  fairly 
carried  out,  without  fraud  or  collusion,  that  they  will  be 
upheld  by  the  courts.     Voluntary  partition  usually  must 

3  Tewksbury  v.  Provizzo,  12  Cal.  23. 


VOLUNTARY    PARTITION.  463 

be  by  deed.  An  exception  to  such  cases  is  where  the 
estate  sought  to  be  partitioned  was  an  estate  only  for 
years,  and  in  such  a  case  the  partition  might  be  made 
without  a  deed  and  by  contract.  *  Tenants  in  common  may 
make  partition  by  parol,  and  continue  the  parol  agree- 
ment by  sufficient  conveyances  to  each  other.  It  may  be 
by  law  as  well  as  by  parol.  These  principles  are  re- 
cognized in    all    the   best    elementary   works   upon   the 

common  law/ 

The  statute  of  frauds  might  make  a  parol  partitition 
void,  when  the  same  was  not  followed  by  conveyances  of 
the  property.  According  to  many  of  the  American  cases, 
and  a  majority  of  the  English  authorities,  partition  may  be 
affected  by  the  statute  of  frauds,  that  interposing  an 
obstacle  to  a  valid  parol  partition.  These  decisions  do 
not  indicate  that  parol  evidence  cannot  be  presented  to 
establish  a  division  of  the  property  among  the  co-tenants. 
In  fact,  a  court  of  equity  would  consider  that  equity 
demanded  that  parol  evidence  should  be  admitted  to  show 
exactly  the  transactions  between  the  co-tenants,  and  to 
show  the  respective  rights  of  each  co-tenant.  Usually 
following  a  parol  partition  is  the  occupancy  of  each  co- 
tenant  of  that  portion  of  the  premises  agreed  upon  as  his 
share.  That  occupancy  may  be  for  a  short  time,  or  for  a 
great  number  of  years.  One  co-tenant  may  improve  that 
portion  occupied  by  him — may  bring  it  to  a  high  state  of 
cultivation,  while  another  man  may  not  improve  his,  and, 
in  fact,  may  allow  it  to  decrease  in  value  by  his  neglect, 
the  recorded  title  showing,  notwithstanding  the  parol 
partition,  that  the  co-tenants  are  owners  of  the  whole 
of  the  premises  as  a  co-tenancy.     The  court,  in  equity, 

■*  2  Cruise  384  ;    13  PetersdorfT  Abr.  137. 
s  2  Cruise,  410  ;  Co.  Lilt.  169  ;  Litt.  §  250. 


464  THE    LAW    OF    PARTITION. 

when  such  a  matter  is  brought  before  it,  would  undertake 
to  so  settle  the  relationship  of  the  parties  in  and  to  the 
common  land,  that  each  should  receive  the  share  and  por- 
tion occupied  by  him  or  her  under  the  parol  agreement, 
and  would  allow  parol  testimony  to  be  produced,  as  there 
would  be  no  recorded  testimony  in  relation  to  the  trans- 
action, so  that  it  could  do  equity  to  all  the  parties  con- 
cerned.* Long-continued  occupation  in  severalty  may  be 
explained,  and  it  may  be  shown  to  the  court  that  such 
long-continued  occupation  existed  by  virtue  of  a  parol 
partition  made  by  the  co-tenants.  The  jury  in  such  cases 
might  not  be  justified  in  finding  that  a  valid  partition  had 
been  consummated.  If  such  should  be  the  findings  of 
the  jury,  the  co-tenants,  notwithstanding  their  long  and 
continued  occupation  by  reason  of  the  parol  agreement, 
would  be  regarded  as  owners  of  undivided  parcels  or 
moieties  in  the  lands.  ' 

Partition  at  all  times  is  an  action  in  equity.  All  mat- 
ters pertaining  to  the  common  interests  of  the  parties  in 
the  co-tenancy  are  before  the  court.  The  leaning  of  the 
court,  when  possible,  is  to  recognize  and  sanction  the 
parol  partition  by  making  a  final  decree  carrying  out  and 
upholding  such  partition  so  far  as  within  their  power.  If 
it  is  for  the  better  interests  of  the  parties  and  the  greater 
equity  in  it,  not  to  recognize  and  uphold  such  partition, 
the  court  is  at  liberty  to  decline  to  do  so  and  to  enter  a 

6  Johnson  v.  Wilson,  Willes,  248 ;  Ireland  v.  Rittle,  i  Atk. 
541  ;  Whaley  v.  Dawson,  2  Sch.  &  Lef.  367  ;  Allnatt  on  Part. 
130. 

7  Dow  V.  Jewell,  18  N.  H.  353;  Porter  v.  Hill.  9  Mass.  34; 
Wright  7/.  Cane,  18  La.  Ann.  579;  Ballou  v.  Hale,  47  N.  H.  350; 
Lacy  V.  Overton,  2  A.  K.  Marsh.  442 ;  Medlin  v.  Steele.  75  N.  C. 
154. 


VOLUNTARY    PARTITION.  465 

decree  making'  a  new  and  different  allotment  among  the 
parties.  Parol  partitions  are  upheld  in  New  York  seem- 
ingly more  frequently  than  elsewhere,  notwithstanding 
the  statute  of  frauds,  when  such  partition  is  followed  by 
possession  taken  and  held  by  virtue  thereof.  Chancellor 
Kent,  when  Chief  Justice  of  the  Supreme  Court,  upon  this 
subject  said:  "A  parol  division,  carried  into  effect  by 
possessions  taken  according-  to  it,  will  be  sufficient  to 
sever  the  possessions,  as  between  tenants  in  common 
whose  titles  are  distinct,  and  where  the  only  object  of  the 
division  is  to  ascertain  the  separate  possessions  of  each. 
This  was  so  admitted  by  the  court  in  the  case  of  Jackson 
ex  dem.  Van  Denberg  v.  Bradt,  2  Cai.  174.""  Freeman, 
in  his  able  work,  in  commenting  upon  the  remarks  above 
quoted,  as  made  by  Chief  Justice  Kent,  says  :  "But  the 
case  to  which  the  chief  justice  thus  referred  does  not, 
as  reported,  warrant  the  statement  which  he  made :, 
because  the  parol  partition  had  been  confirmed  by  a  deed 
in  which  the  co-tenants  covenanted  to  abide  by  it."  There- 
is  no  doubt  but  that,  where  the  title  is  admitted  to  have 
been  in  common,  a  parol  partition,  followed  by  possession,, 
will  be  valid  and  sufficient  to  sever  the  possession  ;  but 
where  the  whole  right  and  title  of  the  parties  setting  up 
such  co-tenancy  in  common  is  denied,  and,  in  fact,  aban- 
doned, the  parol  partition  will  not  operate  as  a  transfer 
of  title.^ 

This    principle,  as    set    forth   in  Jackson  v.  Vosburgh, 
has  since  been  frequently  and  consistently  applied  in  New 


8  Jackson  v.  Harder,  4  Johns.  212  ;  4  Am.  Dec.  262. 

^  Jackson  7/.  Vosburj^h,  9  Johns.  276.  See  4  Johns.  212  ;  7 
Wend.  141  ;  25  Wend.  436;  36  N.  Y.  503;  20  Barb.  127;  6  Am. 
Dec.  276. 


466  THE    LAW    OF    PARTITION. 

York."  In  South  Carolina,  the  courts  have  ruled  that  if 
actual  possession  follows  the  parol  partition,  the  parties 
would  be  bound  thereby."  This  rule  seems  to  have  been 
conceded  in  Missouri  at  one  time.'-  But  there  the  idea  is 
similar  to  that  in  Virginia,  that  coparceners  may  mark 
and  establish  the  dividing  line  between  them,  and  prove 
it  by  other  competent  evidence  than  the  deed  ;  and  that, 
from  the  time  of  the  marking  out  and  establishing  of  the 
lines,  the  co-tenants  will  be  seized  in  severalty."  In 
Ohio,  the  courts  are  not  apt  to  disturb  a  parol  partition 
consummated  by  possession,  there  being  a  fair  division  of 
the  property  ;  and  they  will  not  disturb  it  after  a  lapse  of 
a  number  of  years,  although  some  of  the  parties  were 
infants."  In  Texas,  a  parol  partition  is  considered 
valid, '^  and  the  decision  is  based  upon  the  ground  that 
there  is  a  material  difference  between  the  statute  of  frauds 
of  that  State  and  the  English  statutes.'* 

The  statute  of  frauds  is  an  element  that  must  be 
generally  considered.  There  may  be  a  distinction  between 
the  partition  of  lands  and  the  sale,  which  distinction  is 
pointed  out  by  some  of  the  courts  in  upholding  a  parol 
partition  upon  the  ground  that  the   partition   does  not 

10  Mount  7/.  Morton,  20  Barb.  138;  Otis  z/.  Cusack,  43  Barb. 
549  ;  Conkling  v.  Brown,  57  Barb.  265  ;  Wood  v.  Fleet,  36  N.  Y. 
499;  Ryerss  v.  Wheeler,  25  Wend.  434;  Wildey  v.  Bonney,  31 
Miss.  652;  Pipes  t/.  Buckner,  51  Miss.  848. 

11  Slice  V.  Derrick,  2  Rich.  629  ;  Haughbaugh  v.  Honald,  3 
Brev.  98  ;  5  Am.  Dec.  548. 

1^  Bompart  v.  Roderman,  24  Mo.  398.     See  8  Mo.  App.  434. 

13  Coles  V.  Wooding,  2  Pat.  &  H.  197  ;  Boiling  v.  Teel,  7  Va. 
L.  J.  604.  See  Manly  v.  Pettee,  38  111.  131  ;  Tomlin  v.  Hilyard,  43 
111.  300;  Hazen  v.  Barnett,  50  Mo.  507. 

14  Piatt  V.  Hubbel,  50  Ohio,  245. 

1^  Stuart  V.  Baker,  17  Tex.  420;  Dement  z/. Williams,  44  Id.  158. 
16  Hunter  -v.  Morse,  49  Tex.  219;    Compton  v.  Matthews,  22 
Am.  Dec  167.    See  89  111.  370. 


VOLUNTARY    PARTITION.  467 

transfer  the  title  of  the  parties  so  much  as  it  assigns  or 
apportions  it, — that  is,  the  title  remains  in  the  co-tenants, 
but  the  title  and  right  of  possession  is  divided.'"  A  mere 
unexecuted  agreement  for  partition,  or  an  agreement 
which  is  incapable  of  being  executed  because  it  cannot  be 
followed  by  possession  in  accordance  with  it,  is  not  bind- 
ing upon  any  one."  It  is  somewhat  well  settled  that  a 
parol  partition  will  not  operate  to  transfer  title.*' 

Parol  partition  does  not  destroy  co-tenancy,  although 
fully  executed  and  the  parties  hold  possession  under  it. 
Mr.  Washburn,  in  his  work  upon  real  estate,  declares,  in 
general  terms,  that  "  no  parol  partition  can  be  effectual, 
unless  accompanied  by  deeds  from  one  co-tenant  to  the 
other,  inasmuch  as  the  Statute  of  Frauds  applies  to  such 
cases."  Mr.  Browne,  in  his  Treatise  on  the  Statute  of 
Frauds,  announces,  as  his  conclusion,  that  "  the  decided 
weight  of  authority  in  the  United  States  seems  to  favor 
the  English  view  of  this  question,  and  to  be  opposed  to 
allowing  a  verbal  partition  to  be  effectual,  even  to  sever 
the  possession  of  tenants  in  common."  It  does  not  seem 
that  the  rule  should  be  carried  so  far  as  that  laid  down 
by  Browne.  Equity  ought  to  allow  a  severance  of  the  pos- 
session by  parol,  even  though  it  does  not  allow  a  sever- 
ance of  the  title  in  the  same  way.  The  possession  of 
the  co-tenants  ought  not  to  be  disturbed  after  it  has 
been  entered  into  pursuant  to  a  verbal  agreement  and 
acquiescence  for  a  considerable  length  of  time." 

17  Moore  v.  Kerr,  46  Ind.  470;  Brown  v.  Wheeler,  17  Conn. 
345;  44  Am.  Dec.  550.  See  Hauk  v.  McComas,  98  Ind.  460, 
Shepard  v.  Rinks,  78  111.  188. 

i«  Woodbeck  v.  Wilders,  18  Cal.  136;  Lauterman  v.  Williams, 
55  Cal.  600. 

1^  Browne  on  Statute  of  Frauds,  ^  70 ;  9  Johns.  276,  290 ;  6 
Am.  Dec.  276. 

20  I  Washb.  on  Real  Prop.  430  ;  Freem.  on  Co-ten.  401. 


468  THE    LAW    OF    PARTITION. 

Freeman,  in  his  remarks  upon  the  enforcement  of 
parol  partition,  says  :  "  But  whatever  effect  may  be  con- 
ceded at  law  to  parol  partitions,  we  think  it  quite  certain 
that,  when  executed  by  taking  possession  thereunder, 
Vhey  will  be  recognized  and  enforced  in  equity,  particu- 
larly when  such  a  partition  and  the  possession  based  upon  it 
have  been  mutually  acquiesced  in  by  the  parties  for  a  con- 
siderable period.  '  I  do  admit  a  parol  agreement  of  long 
standing,  acknowledged  by  all  the  parties  to  have  been 
the  actual  agreement  and  accordingly  put  in  execution, 
will  be  established  by  this  court,  where  it  appears  that  the 
persons  who  made  such  an  agreement  had  a  right  to  con- 
tract, and  I  will  not,  at  fifty-three  years'  distance,  suffer 
either  of  the  parties  to  controvert  the  equality  of  the  par- 
tition at  the  time  it  was  made.'  It  is  true,  that  in  some 
cases  in  which  equity  has  protected  rights  based  upon 
parol  partitions,  possession  had  been  taken  and  continued 
under  such  partition  for  a  long  period  of  time,  or  one  of 
the  parties,  acting  upon  his  faith  in  the  partition,  has  made 
valuable  improvements  upon  the  property  allotted  to  him. 
But,  while  either  of  these  circumstances  may  justly  be 
regarded  as  entitled  to  great  consideration,  we  can  see 
that  neither  is  essential  to  warrant  the  interposition  of  the 
court,  and  that  a  court  of  equity  will  compel  specific  per- 
formance of  a  parol  partition,  as  of  any  other  parol  con- 
tract relating  to  lands,  whenever  it  has  been  carried  into 
execution  by  the  parties.  " 

According   to    the  Mexican  and  Spanish  laws,  parol 


21  Ireland  v.  Rittle,  i  Atk.  542,  ante;  Kennedy  v.  Kennedy,  43 
Pa.  St.  417  ;  Massey  v.  Mclllwain,  2  Hill  Ch.  424  ;  Pope  v.  Henry, 
24  Vt.  560;  Goodhue  7/.  Barnwell,  Rice  Eq.  236;  Hazen  v.  Burnett, 
50  Mo.  507,  ««/<?/ Tomlin  v.  Hilyard,  43  111.  -^02,  ante;  Eaton  v. 
Tallmadge,  24  Wis.  221  ;   Buzzell  v.  Gallagher,  28  Wis.  678. 


VOLUNTARY    PARTITION.  469 

partitions  were  valid.  But  in  order  to  uphold  such  a  par- 
tition under  the  Spanish  law,  as  well  as  under  the  com- 
mon law,  it  must  appear  satisfactorily  not  only  that  there 
was  an  agreement  duly  made,  but  that  such  an  agree- 
ment was  fully  executed  by  following  the  same  by 
possession  in  severalty  of  the  premises.  " 

The  most  usual  manner  of  accomplishing  a  voluntary 
partition  is  by  means  of  deeds  and  releases  between  the 
co-tenants.  When  the  division  of  lands  has  been  accom- 
plished in  this  way,  and  without  fraud  or  collusion,  there 
being  no  infants  interested,  it  must  necessarily  be  safe. 
When  partition  shall  have  been  effected  by  mutual  deeds 
between  the  co-tenants,  those  deeds  must  be  construed 
together  as  one  instrument,  taking  into  consideration  all 
the  circumstances  surrounding  them,  and  for  which  they 
were  made.  ''  To  make  such  a  partition  perfect,  the  wives 
of  husbands  who  are  co-tenants  should  join  in  the  mutual 
deeds,  releasing  their  inchoate  rights  of  dower  in  the 
property.  Unless  they  should  join  with  their  husbands 
certain  equities  would  remain  in  the  premises  to  the 
wives.'*  No  warranty,  arises  from  voluntary  partition.  It 
would  not  be  proper  to  consider  that  the  respective 
tenants  in  common,  who  have  deeded  to  each  other  for 
the  purpose  of  dividing  the  lands,  were  to  be  held  by  the 
covenants  of  seizin  in  the  deed,  providing  there  should 
be  a  failure  of  the  titles  in  whole  or  in  part.  The  co- 
tenants  take  from  their  ancestor  what  their  ancestor  had 
at  his  death.     They  can  have   no   better   title    than  that 

22  Long  V.  Dollarhide,  24  Cal.  222  ;  Lynch  v.  Baxter,  4  Tex. 
431  ;    51  Am.  Dec.  735. 

2^  AUnatt  on  Part.  131  ;  Rountree  v.  Denson,  59  Wis.  522; 
18  N.  W.  R.  518, 

24  Eaton  V.  Tallmadge,  74  Wis.  223,  ante. 


470  THE    LAW    OF    PARTITION. 

held  by  him,  when  that  title  comes  to  them  by  inheritance. 
When  the  title  comes  to  the  co-tenant  by  grant  they  are 
each  entitled,  as  against  the  grantor,  to  such  equities  as 
may  arise  by  reason  of  the  grant  and  the  warranties 
-therein  contained.  Those  equities  would  naturally  remain 
after  the  voluntary  partition  had  been  effected.  But  in 
deeding  to  each  other,  imperfections  of  title  cannot  be 
divided  up  in  such  a  way,  so  that  one  would  have  a  right 
of  action  therefor  as  against  the  other  by  reason  of  the 
covenants  and  warranties  contained  in  the  conveyances. 
In  New  York,  a  parol  partition  of  the  interests  of  several 
co-heirs  can  only  give  to  each  the  rights  and  interests, 
either  vested  or  contingent,  which  the  others  then  had  in 
the  lands  at  the  time  the  same  were  set-off  in  severalty.  ^^ 
Notwithstanding  it  is  advisable  for  the  wife  to  join 
with  her  husband  co-tenant  in  the  deed  of  conveyance 
made  by  him,  the  rule  is  laid  down  that  if  her  husband  be 
a  joint  tenant  he  has  not  such  a  seizin  that  she  can 
acquire  any  right  to  dower,  unless  the  joint  tenancy  in 
some  manner  should  be  converted  into  a  tenancy  in  com- 
mon. This  rule,  of  course,  is  based  upon  the  fact  that  in 
the  joint  tenancy  there  is  a  survivorship,  that  the  husband 
did  not  die  seized  of  the  premises,  but  at  his  death  his 
surviving  joint  tenant  becomes  seized,  and,  therefore,  the 
wife  has  no  right  of  dower.  ''^  In  equity,  when  the  hus- 
band is  compellable  by  legal  proceedings  to  make  parti- 

25  Rawle  on  Gov.  Title,  474,  475  ;  Weiser  v.  Weiser,  5  Watts, 
280;  30  Am.  Dec.  313  ;  Picot  v.  Page,  26  Mo.  422  :  Dawson  v.  Law- 
rence, 13  Ohio,  546;  42  Am.  Dec.  210;  Carpenter  v.  Schermer- 
horn,  2  Barb.  Cli.  322,  ani^;  Beardsley  v.  Knight,  10  Vt.  185;  33 
Am.  Dec.  193;  Rountree  7/.  Denson,  59  Wis.  522,  a?i/t';  Morris  z/. 
Harris,  9  Gill,  26;  Rogers  v.  Turley,  4  Bibb,  356;  Venable  v.  Beau- 
champ,  28  Am.  Dec.  74. 

26  Patterson  v.  Lanning  36  Am.  Dec.  154. 


VOLUNTARY    PARTITION.  47 1 

tion  with  his  co-tenants,  it  is  conceded  that  he  may  do 
voluntarily  that  which  the  law  could  oblige  him  to  do,  and 
that,  when  voluntary  partition  has  been  perfected,  the 
dower  interest  of  the  wife  in  that  undivided  portion  of 
the  premises  belonging  to  her  husband  attaches  itself  to 
that  divided  portion  of  the  premises  allotted  to  her  hus- 
band by  the  voluntary  act  of  the  co-tenants.  This  is  upon 
the  principle  that  the  wife  is  in  no  way  wronged,  and  that, 
if  an  equitable  and  fair  division  has  been  made,  without 
fraud  or  collusion,  then  by  confining  her  to  the  equal  share 
which  her  husband  takes,  she  will  have  all  the  dower 
given  to  her  by  law."'  If  the  husband  dies  pending  a  par- 
tition suit,  to  which  his  wife  is  not  made  a  party,  the  suit 
can  only  be  revived  or  continued  against  the  widow,  as  to 
her  right  of  dower  in  the  premises,  by  the  original  bill 
in  the  nature  of  a  bill  of  revivor  and  supplement.  The 
purchaser  of  premises  sold  under  a  decree  for  partition 
takes  the  same  subject  to  the  right  of  dower  of  the  wife  of 
one  of  the  co-tenants  in  common,  unless  the  wife  was  a 
party  to  the  suit;  but  where  an  actual  partition  is  made, 
the  wife's  dower  will  attach  upon  the  portion  of  the  premises 
allotted  to  her  husband.  -** 

A  married  woman  may  be  interested  in  the  lands 
directly, — that  is,  she  may  be  a  tenant  in  common, or  a  joint 
tenant  with  the  others.  By  the  married  woman's  act  of 
New  York  State,  the  wife  may  transact  business  in  regard 
to  her  separate  property,  as  if  she  were  a  fcDic  sole.  She 
can  deal  with  her  separate   property  without   any  restric- 

27  Lee  7/.  Lindell,  22  Mo.  20%  ante;  Potter  7/.  Wheeler,  13  Mass. 
506,  ante;  Wilkinson  v.  Parish,  3  Paige,  658. 

2*<  3  Paige,  652,  658;  Totten  7/.  Stuyvcsant,  3  Edw.  Ch.  503, 
ante;  Potter?/.  Wheeler,  13  Mass.  506,  ante;  Mosher  v.  Mosher,  32 
Me.  414;    Rank  7/.  Hanna,  6  Ind.  20. 


472  THE    LAW    OF    PARTITION 

tions,  or  without   laboring   under    any  disabilities,  as  any 
other  co-tenant. 

In  some  States,  where  the  law  pertaining  to  the  rights 
of  married  women  is  not  so  broad  and  liberal  as  in 
New  York,  then  the  common-law  ideas  would  prevail  to 
their  full  extent,  unless  the  common  law  should  be 
relieved  in  part  or  in  whole  by  statutory  enactment.  A 
conveyance  made  by  a  married  woman  must  be  acknowl- 
edged before  some  officer  authorized  to  take  acknowledg- 
ments, and  she  should  be  acquainted  wh  its  it  contents, 
and,  unless  the  statute  has  decreed  otherwise,  such  ack- 
nowledgment should  be  upon  an  examination  private 
from  her  husband,  and  without  his  hearing.  The  officer 
questioning  her  has  to  know  whether  the  acknowledg- 
ment is  made  without  fear  or  compulsion  upon  the  part 
of  her  husband.  This  rule  in  regard  to  taking  the  ack- 
nowledgment does  not  prevail  in  New  York, — the  more 
civilized  rule  prevailing,  allowing  the  wife  to  be  ques- 
tioned in  regard  to  the  acknowledgment  the  same  as  the 
husband,  and  no  more.  If  a  conveyance  made  by  a  mar- 
ried woman  is  intended  to  operate  as  a  partition,  the  con- 
veyance cannot  be  questioned  after  possession  shall  have 
been  taken  and  the  deed  given,  upon  the  ground  that  the 
examination  at  the  time  of  the  acknowledgment  before 
the  officer  was  within  the  hearing  of  her  husband.  '^^ 

In  those  States  where  the  statutes  have  not  changed 
the  law  as  it  formerly  existed,  where  husband  and  wife 
hold  property  in  co-tenancy  they  are  joint  tenants,  or, 
perhaps,  more  correctly  speaking,  tenants  by  entirety. 
An  action  of  partition  cannot  be  maintained  between  them; 

29  Wetherill  v.  Mecke.  Brightly.  140;  Hardy  7/.  Summers,  32 
Am.  Dec.  167;  Calhoun  7/.  Hays,  42  Id.  275;  Bryant/.  Stump,  56  Id. 
139;  Bumgardner  ?/.  Edwards,  85  Ind.  126. 


VOLUNTARY    PARTITION.  473 

and  there  is  some  question  as  to  whether  a  voluntary 
partition  made  by  them  would  be  legal,  each  deeding  to 
the  other  the  parcels  or  parts  of  the  lands  held  in  entirety, 
as  agreed  upon  by  them.  They  could  deed  the  property 
held  by  them  as  tenants  by  entirety,  to  some  third  person, 
each  joining  in  the  conveyance.  When  that  is  done,  the 
premises  lose  the  character  of  holden  by  entirety,  and 
the  title  rests  in  one  individual.  Then  that  individual  can 
convey  back  to  the  husband  and  wife  in  severalty,  so  as 
to  make  voluntary  partition  of  the  premises.'" 

Voluntary  partition  in  case  of  infancy  may  be  made 
binding  by  the  infant  entering  upon  the  premises,  and 
acquiescing  thereto,  after  he  shall  have  become  of  age. 
He  is  compellable  under  the  \sl\v  to  make  partition.  And, 
in  some  instances,  courts  have  held  that  he  is  bound  by 
the  partition  made  during  his  infancy,  providing  the  vol- 
untary partition  so  made  was  in  good  faith,  fairly  done, 
and  without  fraud  or  collusion,  and  all  the  equities  belong- 
ing to  the  infant  had  been  set  apart  to  him."  Notwith- 
standing the  Statute  of  Frauds,  it  has  always  been  consid- 
ered that  an  agreement  in  writing  to  make  partition  will 
have  the  same  effect,  in  equity,  as  an  actual  partition  in 
law.''  It  hardly  seems  that  such  an  agreement  would  per- 
fect the  title  in  severalty  in  the  respective  co-tenants,  but, 
if  necessary,  equity  will  enforce  such  an  agreement,  and  a 

30  Frissell  v.  Rozier,  19  Mo.  448;  Vin.  Abr.  tit.  "Partition," 
(D.  subd.  13)  ;  citing  Arg.  2  Le.  25  ;  Pafch  30  Eliz.  B.  R.,  in  case 
of  Ross  V.  Morris. 

31  Hemich  v.  High,  2  Watts,  159  ;  Calhoun  v.  Hays,  42  Am. 
Dec.  275,  an/c  ,■  Townsend  v.  Downer,  32  Vt.  183;  Wiiliard  *. 
Williard,  56  Pa.  St.  119;  Estabrooks  v.  Harris,  2  Allen,  42;  All- 
natt  Part.  29. 

32  2  Cruise,  410. 


474  THE    LAW    OF    PARTITION. 

decree  or  judgment  of  the  court  will  be  entered  perfecting 
the  title  as  per  the  agreement.^^ 

Where  tenants  in  common  of  lands,  including  a  town 
road  passing  through  the  same,  made  a  partition  by- 
mutual  deeds  of  release,  in  which  the  bounds  of  the  tracts 
so  released  were  described  as  beginning  at,  and  running 
by,  and  on  the  side  of,  the  road,  the  road  itself  is  not 
included  in  the  partition,  but  the  parties  still  remain  ten- 
ants in  common  thereof,  subject  to  the  public  easement.^ 
By  the  Massachusetts  decision,  the  law  will  not  presume 
a  deed  merely  from  the  several  possession  of  the  tenants 
by  reason  of  the  statute  of  frauds.^'  These  decisions 
do  not  go  so  far  as  to  hold  that  a  court  of  equity  could 
not  enforce  the  specific  performance  of  the  parol  or  ver- 
bal agreement,  the  same  having  been  followed  by  posses- 
sion. The  courts  of  New  York  have  laid  the  rule  some- 
what different :  that  a  parol  partition  between  tenants  in 
common,  accompanied  by  actual  possession  in  accord- 
ance therewith,  will  bind  the  parties  and  those  claiming 
through  or  from  them,'"  Undoubtedly,  this,  the  better 
rule,  is  upon  the  principle  that  partition  is  an  action  in 
equity  ;  that  all  the  equities  are  before  the  court,  and  that, 
in  equity,  the  court  has  a  right  to  recognize  the  parol 
partition  and  the  possession  following  thereafter,  and  to 
agree  that  such  agreement  shall  be  specifically  performed. 


33  Pringle  v.  Sturgeon,  Litt.  Sel.  Cas.  112;  Fleming  v.  Kerr, 

10  Watts,  444  ;  Emeric  v.  Alvarado,  64  Cal.  579.     See  21   Cal.  69; 

11  Humph.  389;  Douglass   v.  Harrison,  2   Sneed,  382 ;  Gates  v. 
Salmon,  46  Cal.  361. 

34  Sibley  v,  Holden,  10  Pick.  249. 

35  Porter  v.  Perkins,  5    Mass.    233;  Whitney  v.   Holmes,    15 
Mass.  152. 

36  Otis  V.  Cusack,  43  Barb.  546,  ante. 


VOLUNTARY    PARTITION.  475 

and  to  make  judgment  or  decree  settling  the  title  in  and 
to  the  respective  occupants  of  the  several  parcels." 

A  parol  partition  of  lands,  followed  by  a  possession 
and  occupation  in  conformity  to  it,  for  a  period  of  thirty 
years,  is  valid  and  operative.  For  it  has  been  repeatedly 
decided  that  a  parol  partition,  carried  into  effect  by  pos- 
sessions and  occupation  in  conformity  thereto,  will  be 
binding  between  the  co-tenants  in  common,  whose  titles 
are  distinct,  and  the  only  object  of  the  division  is  to  ascer- 
tain the  separate  possessions.^  In  an  action  against  a 
stranger  to  the  title,  such  partition  will  be  enforced, 
although  made  by  the  grantee  of  a  tenant  by  the  curtesy; 
during  the  continuance  of  the  life  estate,  partition  is  good. 
A  parol  partition,  carried  into  effect  by  possession  taken 
according  to  it,  is  sufficient  to  sever  the  possessions  as 
between  tenants  in  common,  whose  titles  are  distinct, 
and  when  the  only  object  of  the  division  is  to  ascertain 
the  separate  possessions  of  each.  The  New  York  statutes 
protecting  the  property  of  married  women  authorize  them 
to  make  partition,  with  the  assent  of  their  husbands,  when 
they  have  an  estate  in  lands.^^  The  later  laws  relative 
to  married  women  allow  them  to  make  partition  without 
the  assent  of  their  husbands,  as  they  allow  them  to  deal 
with  their  individual  property  the  same  as  if  single. 
Deeds  given  by  the  co-tenants  of  the  respective  par- 
cels, which  they  hold  in  severalty,   would,   undoubtedly, 

37  Wood  V.  Fleet,  36  N.  Y.  499,  ante ;  Jackson  v.  Harder,  4 
Johns.  200.  See  5  Wend.  54  ;  7  Id.  141  ;  25  Id.  436 ;  19  Id.  297  ; 
36  N.  Y.  502;  20  Barb.  127 ;  43  Id.  549. 

38  Ryerss  v.  Wheeler,  25  Wend.  434.  See  4  Johns.  202  ;  9  Id. 
270  ;  14  Wend.  619;  Co.  Litt.  169  ;  Com.  Dig.  "Parceners,"  5  ;  4  N. 
Y.  262  ;  45  Am.  Dec.  377  ;  18  N.  H.  353. 

39  Hunt  V.  Johnson,  19  N.  Y.  297  ;  citing  Jackson  v.  Harder, 
4  Johns.  202  ;  Jackson  v.  Bradt,  2  Cai.  174,  ante. 


476  THE    LAW    OF    PARTITION. 

convey  title  to  the  grantees  named  in  such  deeds.  Such 
conveyances  would  be  conclusive  evidence  of  a  partition 
previously  agreed  on  ;  and  the  co-tenants,  by  their  acts, 
causing  others  to  believe  that  it  was  made,  would  be 
estopped  from  denying  the  existence  of  such  partition. 
Such  conveyances,  made  separate,  and  at  successive  times, 
equally  establish  the  fact  of  partition  previously  agreed 
to."  ^ 

If  a  tenant  in  common,  following  a  parol  partition, 
erects  buildings  upon  that  portion  of  the  premises  of 
which  he  is  in  possession  by  virtue  of  the  parol  partition, 
a  lien  will  attach  thereto  in  favor  of  the  contracting  party, 
who  has  built  or  furnished  the  material  therefor  ;  and  the 
co-tenant  who  is  not  a  party  to  the  contract  with  the 
mechanic,  and  who  has  no  interest  in  the  work  done,  is 
not  liable  under  the  contract;  nor  is  his  share  of  the  prop- 
erty subject  to  the  builder's  lien/'  Two  tenants  in  common 
make  partition  of  their  lands  and  execute  to  each  other 
releases  in  fee.  One  of  them  has  only  a  life-estate,  but 
after  the  division  the  fee  descends  to  him,  and  he  sub- 
sequently sells  and  conveys  in  fee  the  part  allotted  to 
him  in  the  partition.  Such  conveyance  carries  with  it 
title.  This  confirms  the  partition,  so  that  the  person  who 
had  the  life-estate  cannot  claim  any  interest  in  that  part 


*"  Mount  V.  Morton,  20  Barb.  123,  aftte ;  citing  4  Johns.  212; 
9  Id.  276;  7  Wend.  136;  14  Id.  619;  25  Id.  434;  4  Hill,  468 ;  4  N, 
Y.  257. 

''  Presumptions  are  only  indulged  in  where  there  are  no  other 
means  of  ascertaining  the  facts.  3  Blacks.  Comm.  371,  Oxford 
ed.  1773;  14  E.  L.  &  Eq.  R.  223 ;  Black  v.  Wright,  9  Ired.  447; 
Jackson  v.  Mancius,  2  Wend.  357. 

*i  Otis  V.  Cusack,  43  Barb.  546;  citing  Smith  v.  Brady,  17 
N.  Y.  173.  See  9  N.  Y.  435  ;  21  Barb.  520  ;  2  E.  D.  Smith,  543  ;  3 
Hill,  215. 


VOLUNTARY    PARTITION.  477 

allotted  to  his  co-tenant."  A  parol  partition  of  real 
estate  by  tenants  in  common,  followed  by  exclusive  pos- 
session, are  acts  of  ownership  by  each  tenant  respectively, 
and  are  valid  and  binding  upon  their  heirs/'  Cases  in 
Massachusetts,  Pennsylvania  and  Maine,  hold,  that  no 
parol  partition  can  be  effectual  unless  accompanied  by 
deeds  from  one  tenant  to  the  other,  inasmuch  as,  in  the 
opinion  of  the  courts  of  these  States,  the  statute  of  frauds 
applies  in  such  cases/*  Washburn,  after  setting  forth  the 
principles  laid  down  in  the  cases  last  cited,  says  :  "But 
although  a  parol  partition  between  tenants  in  common 
may  not,  for  the  reasons  stated,  affect  the  legal  title  of 
the  several  owners  ;  where  it  is  followed  by  possession  in 
conformity  with  such  partition,  it  will  so  far  bind  the  pos- 
session as  to  give  each  co-tenant  the  rights  and  incidents 
of  an  exclusive  possession  of  his  particular  part."  This 
principle  is  upheld  in  other  States  besides  New  York.'' 

No  parol  partition  of  land  can  avail,  especially  against 
a  married  woman,  unless  it  be  sanctioned  by  possession 
sufficient  to  give  title  under  the  statute  of  limitations,  or 
by  such  lapse  of  time  as  justifies  a  presumption  omnia  esse 
rite  acta.'^  This  rule  is  not  the  prevailing  one  at  present, 
but  the  rule  above  referred  to,  wherein  equity  follows  the 
possession  in  severalty  of  the  co-tenants,  giving  to  his  or 
her  the  share  allotted  by  the   verbal  partition.     A  parol 

*2  Baker  v.  Lorillard,  4  N.  Y.  257. 

43  Wood  V.  Fleet.  36  N.  Y.  499,  ajiie. 

*4  Porter  v.  Hill,  9  Mass.  34,  atite ;  Porter  v.  Perkins,  5  Id. 
2yi,ante;  Snively  v.  Luce,  i  Watts,  69;  Grats  v.  Grats,  4  Rawle, 
411  ;  Gardiner  Mfg.  Co.  v.  Heald,  5  Me.  384;  i  Washb.  Real  Prop. 
450. 

45  Piatt  V.  Hubbell,  5  Ohio,  243;  Keay  v.  Goodwin,  16  Mass.  i; 
Slice  V.  Derrick,  2  Rich.  627. 

4®  Jones  V.  Reeves,  6  Rich.  132. 


478  THE    LAW   OF    PARTITION. 

partition  between  tenants  in  common,  carried  into  effect 
by  possession  taken  by  each  party  of  his  share,  is  valid 
and  binding  upon  the  parties,  and  a  court  of  equity  will, 
upon  proper  bill  filed,  compel  conveyance  to  each  of  the 
part  partitioned  to  him  by  the  other/'  But  where  one  of 
the  co-tenants  is  not  sui  Juris,  takes  no  part  in  the  oral 
partition,  has  no  provision  made  for  him,  is  not  present, 
and  receives  no  purpart  or  an  equivalent,  he  is  not 
bound  by  the  partition.  Such  a  partition  is,  nevertheless, 
binding  upon  each  of  the  co-tenants  who  participated  in  it 
sui Juris  and  received  a  purpart,  or  its  equivalent — at  least 
as  between  himself  and  the  others  who  participated  in 
like  manner." 

47  Gage  V.  Bissell,  8  West.  R.  54.     See  Hyde  v.  Heath,  75  111. 
381  ;  Gage  v.  Reed,  104  III.  509. 

48  Mellon  V.  Reed,  6  Cent.  R.  413.     See  Calhoun  v.  Hays,  8 
Watts  &  S.  1 32. 


CHAPTER  XXXIII. 


COLOR    OF   TITLE. 


An  apparent  title,  founded  upon  a  written  instru- 
ment,— such  as  a  deed,  levy  of  execution,  or  a  decree  of 
court, — is  what  is  termed  in  law  a  color  of  title.  To  give 
color  of  title,  the  conveyance  must  be  good  in  form,  and 
profess  to  convey  the  title,  and  be  duly  executed.'  A  very 
common  and  general  definition  of  the  term  color  of  title 
is,  "that  which  in  appearance  is  title,  but  in  reality  is  no 
title."  A  deed  or  survey  of  land  placed  upon  a  record 
where  land  titles  usually  are  recorded,  whereby  notice  is 
given  to  the  true  owner  and  all  the  world  that  the  occu- 
pant claims  title.  It  is  a  notice  that  he  claims  the  title 
under  such  deed,  and  such  deed  is  his  color  of  title.^ 

A  paper  having  a  grantor  and  a  grantee  named  in  it, 
and  describing  certain  real  estate,  purporting  to  convey 
the  real  estate  therein  described  by  some  sufficient  words 
of  conveyance,  gives  color  of  title  to  the  land  set  forth  in 
such  paper  or  instrument.'  The  claim  may  be  entirely 
inadequate,  and  it  may  be  founded  upon  such  instrument, 
deed,  levy,  or  decree,  as  would  be  entirely  incompetent 
to  carry  the  true  title,  or  the  grantor  named  in  the  written 
instrument  purporting  to  convey  thetitle,  may  be  entirely 

1  3  Wait  Act.  <S:  D.  17  ;  35  III.  394 ;  38  III.  327  ;  4  Mart.  224. 

2  Hodges  V.  Eddy,  38  Vt.  327. 

3  Brooks  V.  Bruyn,  35  111.  394. 

[479] 


480  THE    LAW    OF    PARTITION. 

incompetent  to  convey  the  land  therein  set  forth,  yet 
such  instrument,  deed,  levy,  or  decree,  followed  by  pos- 
session, is  an  apparent  color  of  title,  and  must  be  usually 
recognized  as  such  by  the  courts/  Such  a  claim  under 
such  inaccurate  paper  or  instrument,  by  force  of  the 
statute  of  limitations,  would  in  time  ripen  into  a  complete 
title,  when  the  premises  had  been  held  and  possessed  by 
virtue  of  the  color  of  title  for  a  sufficient  length  of  time, 
as  prescribed  by  the  statute  of  limitations  for  that  pur- 
pose. This  would  be  adverse  possession  under  color  of 
title,  ripening  into  actual  title,  such  a  title  as  would 
thereafter  by  conveyance  convey  the  seizin  of  the  prop- 
erty to  the  grantee.  The  rule  is  somewhat  general  that 
to  give  color  of  title  the  instrument  or  conveyance,  under 
which  the  same  is  claimed,  must  be  good  in  point  of 
form,  and  must  profess  to  convey  the  entire  title,  and  be 
properly  executed.  It  would  not  be  wisdom  in  the  law 
to  assume  that  a  person  could  enter  into  possession  of 
premises  under  any  kind  of  paper  or  instrument,  and  claim 
that  that  instrument  is  a  color  of  title  to  the  premises, 
and  should  thereby  claim  such  title.  The  instrument 
under  which  the  claim  is  made  must,  so  far  as  the  face  of 
the  instrument  is  concerned,  comply  with  the  law  regu- 
lating the  same.* 

A  title  which  is  void  upon  its  face,  or  discloses  facts 
which  show  that  the  person  purporting  to  convey  title 
had  none,  is  absolutely  void,  and  cannot  be  implied  into 
being  a  color  of  title.  Thus,  where  a  defendant  offered  a 
deed  in  evid;  ice,  purporting  to  be  a  deed  from  an  officer 
authorized  tc  sell  for  taxes,  and  the  deed  upon  its  face 

4  Edgerton  v.  Bird,  6  Wis.  527. 

5  La  Frombois  v.  Jackson.  8  Cow.  589  ;  Dufour  v.  Campane, 
II  Mart.  715  ;  Friguez*.  Hopkins,  4  Mart.  (N.  S.)  224. 


COLOR    OF    TITLE.  48 1 

showed  that  the  officer  had  not  complied  with  the  requisi- 
tions of  the  statute,  this  was  a  void  deed,  made  in  viola- 
tion of  law,  and  did  not  bring  it  within  the  statute  of  limi- 
tations. The  deed  purported  that  he  must  have  a  connected 
title  from  some  one  authorized  to  sell,  and  in  the  case  to 
which  we  referred,  the  officer  was  not  so  authorized.  The 
deed  was  not,  therefore,  admissible  in  evidence,  and  was 
not,  and  could  not  be  considered  as  color  of  title.^  The 
instrument  relied  upon  as  being  the  paper  or  instrument 
upon  which  the  title  is  founded,  must  purport  on  its  face 
to  convey  title  to  the  grantee.  Unless  such  instrument 
does  so  purport  to  convey  title,  no  title  can  be  claimed 
under  it  ;  and  the  grantee  cannot  by  reason  of  such 
defective  paper  even  claim  a  right  to  the  possession  of 
the  premises.' 

If  a  person  enters  upon  premises  under  proper  color 
of  title,  the  possession  will  be  adverse,  however  ground- 
less the  supposed  title  may  be.  The  fact  that  the  person 
is  in  possession,  and  that  he  is  in  possession  by  virtue  of 
a  color  of  title,  is  the  test.  A  deed  is  not  essential  to, 
constitute  an  adverse  possession  ;  and  if  there  be  a  deed,, 
it  need  not  be  produced;  or  if,  on  production,  it  proves  to- 
be  defective,  this  does  not  prevent  the  possession  from- 
being  adverse.  Every  possession  is  presumed  to  be. 
adverse,  until  the  contrary  is  shown.  This  may  be 
rebutted  by  receiving  a  lease,  paying  rent,  acknowledging 
the  title  to  be  in  another,  or  showing  that  the  possessor^ 

*5  Moore  v.  Brown,  11  How.  U.  S.  414;  Simmons  v.  Lane,  75 
Ga.  178  ;  Marsh  -v.  Weir,  21  Tex.  97.  See  13  How.  U.  S.  478  ;  i  Saw- 
yer, 20;  Hemp.  643. 

7  Bride  v.  Watt,  23  IH.  507 ;  Brooks  v.  Bruyn,  35  111.  392,  ante  ; 
Childs  V.  Shower,  18  Iowa,  261;    Jackson  v.  Frost,    5    Cow.  346; 
Jackson  v.  Adams,  7  Wend.  367;    Doe  7/.  Redfern,  12  East.  R.  96; 
Colgan  V.  Pellens,  2  Cent.  R.  254. 
31 


482  THE    LAW    OF    PARTITION. 

in  fact,  entered  without  a  claim  or  color  of  title.  If  he 
entered  upon  the  premises  under  color  of  title, — that  is, 
having  such  instrument,  deed,  paper  or  decree,  as  would 
upon  its  face  give  a  right  to  claim  the  title  to  the  prem- 
ises, then  he  is  not  only  holding  the  premises  by  reason  of 
adverse  possession,  but  under  color  of  title."  A  person 
entering  upon  lands  and  occupying  them  as  mere  intruder 
is  under  no  obligation  to  pay  the  taxes  that  may  be  asses- 
sed upon  the  land  ;  and  he  may  acquire  title  to  the  land 
under  a  tax  deed  adverse  to  the  former  owner  or  his 
trustees.  Such  intrusion  upon  the  premises  was  subserv- 
ient to  the  legal  title,  and  no  ouster  could  be  presumed  in 
favor   of  such  naked   possession.^ 

The  general  rule,  as  cited  or  quoted  in  the  case  of  Link 
7'.  Doerfer,  is  :  "  The  principle,  however,  that  possession 
must  in  its  inception  be  adverse  and  continue  so,  is  not 
well  understood.  In  those  cases  in  which  that  observation 
occurs,  nothing  had  happened  to  change  the  character 
of  the  first  possession  and  that  was  considered  as  denot- 
ing quo  animo  the  possession  was  held  after  the  first  entry. 
If  one  enter  on  land  without  any  claim  or  title  or 
color  of  title,  the  law  adjudges  the  possession  to  be  in 
subservience  to  the  legal  holder,  and  no  length  of  pos- 
session will  render  the  holding  adverse  to  the  the  title  of 

^  La  Frombois  v.  Jackson,  8  Cow.  589;  citing  12  Johns.  365  ; 
II  Wheat.  415  ;  12  Ves.  266  ;  9  Johns.  180;  18  Id.  44  ;  i  Cow.  285  ; 
5  Wheat.  124;  7  Wheat.  120.  See  45  Wis.  391  ;  33  Cal.  676;  63 
Mo.  247  ;  29  Ind.  72  ;  42  Wis.  395  ;  44  Wis.  129. 

9  Link  V.  Doerfer,  24  Am.  R.  417;  42  Wis.  391  ;  Jackson  v. 
Waters,  12  Johns.  365  ;  Jackson  z^.  Thomas,  16  Id.  293;  Jack- 
son V.  Camp,  I  Cow.  605  ;  Ricard  v.  Williams,  7  Wheat.  59  ;  Socie- 
ty, etc.  V.  Pawlet,  4  Pet.  480  ;  Bradstreet  v.  Huntington,  5  Id.  402  ; 
Jackson  v.  Porter,  i  Paine,  457  ;  Markley  v.  Amos,  2  Bailey,  603  ; 
Blackwood  z/.  Van  Vleit,  30  Mich.  118;  Blakely  v.  Bestor,  13  111, 
708  ;  Moss  V.  Shear,  25  Cal.  38  ;  Bowman  v.  Cockrill,  6  Kan.  311. 


COLOR    OF   TITLE.  483 

the  owner  ;  but  if  a  man  enters  on  land,  without  claim  or 
color  of  title,  and  no  privity  exists  between  him  and  the 
real  owner,  and  such  person  afterwards  acquires  what  he 
considers  a  good  title,  from  that  moment  his  possession 
becomes  adverse."  The  recording  of  a  taxed  deed,  after 
such  entry,  was  equivalent  to  a  new  entry,  under  claim  of 
title  ;  and  from  thence  his  possession  was  adverse." 

The  principles  stated  in  the  above  rule  quoted,  have 
been  recognized  in  a  great  number  of  cases.''  Where 
two  or  more  persons  are  in  possession  of  land, — that  is, 
what  might  be  termed  a  mixed  possession, — the  inference 
of  the  law  is  that  he  who  has  the  best  title  is  the  rightful 
possessor  of  the  premises.''  If  neither  of  the  parties,  thus 
having  an  interest  in  the  mixed  possession  of  the  land,  can 
show  any  legal  title,  the  courts  will  hold  that  he  who 
had  the  first,  the  prior  possession,  will  have  the  better 
right."  Prior  possession  is  sufficient,  when  under  color  of 
title,  to  support  the  right  of  the  party  having  such  prior 
possession  and  his  grantee  to  eject  one  who  has  only  a 
naked  possession."  A  person  who  has  been  evicted  from 
the  possession  of  lands,  can,  without  showing  any  title  in 
himself,  maintain  an  action  for  them,  against  the  grantee 

10  Pepper  v.  O'Dowd,  39  Wis.  538. 

11  Woodward  v.  McReynolds,  2  Pin.  268  ;  Edgerton  v.  Bird,  6 
Wis.  527,  atiie  ;  Smith  v.  Lewis,  20  Wis.  350  ;  Bassett  v.  Welch,  22 
Id.  175  ;  Jones  v.  Davis,  24  Id.  229  ;  McMahon  v.  McGraw,  26  Id. 
614;  Qainn  v.  Quinn,  27  Id.  168;  Frentz  v.  Klotsch,  28  Id.  312; 
Whitney  v.  Gunderson,  31  Id.  359. 

I'-i  Cheney  v.  Ringgold.  2  Harr.  &  J.  87  ;  Page  v.  O'Brien,  36 
Gal.  559. 

'3  Shultz  V.  Arnot,  33  Mo.  172;    Shumway  v.  Phillips,  22  Pa. 

St.  151  ;    Jackson   v.  Hazcn,  2  Johns.  22  ;  Law  v.  Wilson,  2  Root, 

102. 

14  Bates  V.  Campbell,  25  Wis.  613;  Newman  v.  Cincinnati,  18 

Ohio,  323;    Dale  v.  Faivre,  43  Mo.   556;    Keane  v.  Cannovan,  21 

Cal.  291. 


484  THE    LAW    OF    PARTITION. 

of  his  disseizor,  who  is  also  without  title.  One  who  is  a 
purchaser  at  a  sale  under  the  foreclosure  of  a  mortgage 
made  by  a  party  disseized,  while  in  possession,  can  assert 
the  same  rights  as  the  disseizee,  and  recover  upon  his 
possession,  without  proving  that  he  has  ever  been  in 
possession  himself'^ 

In  the  case  of  Smith  v.  Lorillard,  cited  by  Justice 
Emott  in  his  opinion  in  Clute  v.  Voris,  Chancellor  Kent 
upon  this  subject  said:  "A  prior  possession,  short  of  twenty 
years,  under  a  claim  or  assertion  of  right,  will  prevail 
over  a  subsequent  possession  of  less  than  twenty  years 
when  no  other  evidence  of  title  appears  on  either  side." 
Justice  Emott  adds:  "The  rule  is  explained  as  requiring 
that  the  prior  possession  of  the  plaintiff  should  not  have 
been  voluntarily  relinquished,  without  the  animus  revert- 
e?idi,  and  the  subsequent  possession  of  the  defendant 
should  have  been  acquired  by  mere  entry  without  any 
lawful  right.  All  the  facts  which  the  doctrines  of  this 
judgment  require  would  be  found  in  the  case  at  bar,  and 
the  judgment  would  apply  precisely  to  this  case,  if  it  were 
between  Broad  and  the  defendant  as  grantee  of  Badeau.  .  . 
The  first  or  oldest  possession  which  can  be  shown  affords 
a  presumption  which  can  only  be  overreached  by  proof  of 
title,  or  a  subsequent  adverse  holding  long  enough  to  bar 
an  entry." 

A  mortgagee  can  acquire  title  to  premises  through  a 
purchase  at  hfs  own  sale,  and  such  title  is  good  until  the 
same  shall  have  been  set  aside  for  sufficient  reasons  by  a 

15  Clute  V.  Voris,  31  Barb.  511  ;  citing  Bateman  v.  Allen,  Cro. 
Eliz.  437 ;  Allen  v.  Rivington,  2  Saund.  iii  ;  Jackson  v.  Hazen,  3 
Johns.  22  ;  Smith  v.  Lorillard,  10  Id.  338;  Jackson  v.  Rightmyre, 
16  Id.  325  ;  Jackson  v.  Hubble,  i  Cow.  613;  Jackson  v.  Walker,  7 
Id.  637;  Whitney  z/.  Wright,  15  Wend.  171  ;  52  Hen.  ill.  c.  30. 


COLOR    OF    TITLE.  485 

court  having  proper  jurisdiction.'*  A  purchase  at  a  sheriffs 
sale  is  a  color   of  title."     One  may   be   in    possession  of 
lands  under  color  of  title  by  virtue  of  a  deed  received  by 
him  executed  by  one  who  had  a  power  of  attorney  so  to 
do.     A  deed  purporting  to   be  executed   by  virtue  of  a 
power  of  attorney  from    the    owner  of  the    land,  which 
power  is  not    proved,  affords  sufficient   color   of  title  on 
which  to  found  an  adverse  possession,  if  there  has  been  a 
good    constructive   occupation     under   it."     It    may  be 
regarded  as  settled  upon  authority,  that  however  wrong- 
ful or  fraudulent  the  possession,  or  defective   the  title,  an 
entry  under  claim  of  exclusive  title,  founding   such  claim 
upon  a  written  conveyance,  accompanied  by  a  continued 
possession  of  twenty  years,  constitutes  an  effective  adverse 
possession.     A  purchaser  of  premises  at  a   tax  sale,  fol- 
lowed by  possession,  gives  sufficient  color  of  title  to  sus- 
tain an  action  in  ejectment."  An  entry  into  possession  of 
a  tract  of  land,  under  a   deed   containing   specific  metes 
and  bounds,  gives  a  constructive  possession  of  the  whole 
tract,  if  not  in    any  adverse  possession;    although  there 
may  be  no  fence  or  inclosure  around  the  tract.     To  con- 
stitute   actual  possession,  it   is   not  necessary   that  the 
premises  possessed  should   be  inclosed  by  a  fence.     The 
assumption  that  there  can  be  no  possession  to  defeat  an 
adverse  title,  except  in  one  or  other  of  these  ways, — that 


16  Hawkins  v.  Hudson,  45  Ala.  482. 

17  Jackson  v.  Graham,  3  Cai.  188;  Jackson  v.  Davis,  18  Johns.  7; 
Young  V.  Algeo,  3  Watts,  223;  Davis  v.  Evans,  5  Ired.  525  ;  Brock 
2/.  Yongue,  4  Ala.  584;  Matney  7/.  Graham,  59  Mo.  190;  Jackson 
V.  Newton.  18  Johns.  355  ;    Burkhalter  ?/.  Edwards,  16  Ga.  593. 

18  Munro  v.  Merchant,  28  N.  Y.  9  ;  Doe  v.  Phelps,  9  Johns. 
169  ;   Doe  V.  Campbell,  10  Id.  479. 

19  Dillingham  v.  Brown,  38  Ala.  311;  Prescott  v.  Nevers,  4 
Mas.  326  ;   Minot  v.  Brooks,  16  N.  H.  376. 


486  THE     LAW    OF     PARTITION. 

is,  by  an  actual  residence,  or  an  actual  inclosure, — is  a 
doctrine  which  cannot  be  reconciled  with  the  principle 
of  the  better  authorities.'" 

A  deed  from  a  person  not  in  possession,  or  not  shown 
to  be  the  owner  of  the  premises,  establishes  no  title  what- 
ever. Possession,  unaccompanied  by  a  paper  title,  requi- 
site to  furnish  the  presumption  of  ownership,  must  be 
actual  possession."  If  no  person  be  in  actual  possession 
of  property,  recovery  could  not  be  had,  upon  proof  that 
the  premises  were  conveyed  to  the  plaintiff,  at  some  period 
prior  to  the  alleged  injury,  by  a  person  who  has  not  been 
shown  to  have  had  the  title.  A  party  relying  upon  his- 
torical facts  must  produce  evidence  thereof  to  the  jury.^^ 
The  instrument  purporting  to  be  a  deed  and  to  convey 
the  title,  must  be  under  seal.  A  written  instrument,  not 
under  seal,  is  inoperative  and  ineffectual  to  pass  the  legal 
title  to  lands  in  New  York."'  An  intruder  cannot  protect 
himself  in  the  possession  of  the  premises,  by  setting  up 
the  fact  that  the  title  is  in  a  stranger.  An  outstanding 
title  in  a  stranger  cannot  be  set  up  where  there  has  been 
adverse  possession  of  twenty  years.  A  claim  or  title, 
which  could  not  be  set  up  by  a  person  while  in  possession, 
cannot  be  set  up  by  another  person  who  comes  into  pos- 
session under  him.  A  parol  partition  of  land,  carried  into 
effect  by  possession  taken  by  each  party  of  his  respective 
share,  will   be  valid  and  binding  upon    the  parties,  and  is 


20  Ellicott  V,  Pearl,  lo  Pet.  412  ;  Armour  v.  White,  2  Hawy.  87. 

21  Miller  v.  Long  Island  R.  R.  Co.,  71  N.  Y.  380;  Saxton  v. 
Hunt,  Spencer,  487;  Thistle  v.  Frostburg  Coal  Co.,  10  Md.  129; 
Murphy  2/.  People,  4  Hun,  104;  Parsons  v.  Brown,  15  Barb.  590: 
Lane  v.  Gould,  10  Id.  254;   Graham  v.  Peat,  i  East,  244. 

22  McKinnon  v.  Bliss,  21  N.  Y.  206. 

23  Morss  V.  Salisbury,  48  N.  Y.  637. 


COLOR    OF    TITLE.  4^7 

sufficient  color  of  title.'*     It  is  not   necessary  to  aver  in 
the  pleadings  express  color  of  title." 

2^  Jackson  7/.  Harder,  4  Johns.  202.  See  5  Wend.  54.  79,  141  ; 
25  Id.  436;  19  N.  Y.  297;  36  Id.  502;  20  Barb.  127;  43  Id.  549; 
10  Johns.  356;  5  Cow.  202;  17  Wend.  78;  38  Mich,  730;  40 
Barb.  231. 

25  Moran  ^.  Sign,  2  M.  &  W.  95 ;  Acraman  v.  Cooper,  10  Id. 
585  ;   Ashton  v.  Brevitt,  14  Id.  180. 


CHAPTER  XXXIV. 

PARTITION  OF   PERSONAL  PROPERTY. 

Personal  property  may  be  owned  by  tenants  in  com- 
mon, or  joint  tenants  ;  and  the  law  provides  a  remedy, 
or  rather  provides  a  right  that  any  co-tenant  in  personal 
property  may  have  his  action  for  the  sale  of  the  division 
of  that  property.  Cowen,  in  his  treatise,  says  :  "  Where 
two  persons  together  own  any  personal  property,  they 
hold  it  either  as  joint  tenants  or  as  tenants  in  common. 
They  are  joint  tenants  when  they  acquire  their  title  at 
the  same  time,  by  the  same  conveyance,  each  taking  the 
same  interest,  and  each  holding  by  the  same  undivided 
possession.  The  quantity  or  proportion  of  the  interest 
may  be  different,  but  its  kind  must  be  the  same.  Thus, 
one  may  hold  one-third  and  another  two-thirds,  but  one 
may  not  hold  a  right  to  the  use  of  the  property  for  one 
year  and  the  other  the  remainder.  Tenants  in  common 
are  those  where  the  possession  is  undivided,  but  all,  or  any 
of  the  other  requisites  of  a  joint  tenancy  are  wanting.  A 
letting  of  a  farm  on  shares  creates  a  co-tenancy  in  com- 
mon in  the  crops  or  other  products  to  be  divided.  And 
so,  if  the  one  so  taking  land  employs  a  third  person  to 
thresh  the  crop  for  a  certain  share,  all  the  parties  are 
tenants  in  common  of  the  crop.  The  same  rule  applies 
to  a  leasing,  in  the  same  manner,  of  any  other  property, 

as  a  mill.      In  joint  tenancy,  on  the  death  of  one  tenant 

488 


PARTITION    OF    PERSONAL    PROPERTY.  489 

his  right  vests  in  the  surviving  tenant  or  tenants.  In  a 
tenancy  in  common  it  does  not,  but  belongs  to  the  estate 
of  the  deceased  tenant.  Property  held  by  partners, 
whether  goods  or  rights  of  action,  is  held  in  joint 
tenancy."  ^ 

If  the  property  owned  by  the  tenants  in  common  is 
such  personal  property  that  it  may  be  separated,  like 
wheat  or  other  grain,  each  co-tenant  may  separate  and 
appropriate  to  himself  his  share.  This  may  be  deter- 
mined by  weight  or  measurement  ;  or  if  the  parties  agree 
upon  a  voluntary  division  or  partition  of  such  property, 
they  must  sell  the  same  and  divide  the  proceeds  in  ac- 
cordance with  their  respective  interests  therein.  The 
right  of  severance,  among  tenants  in  common,  by  one 
tenant  of  his  share,  always  existed,  at  common  law,  as  to 
all  property  in  its  nature  that  might  be  severed.  Where 
personal  property,  severable  in  its  nature,  in  common 
bulk,  and  of  the  same  quality,  is  owned  by  several  as 
tenants  in  common,  each  tenant  may  sever  and  appro- 
priate his  share,  if  it  can  be  determined  by  measurement 
or  weight,  without  the  consent  of  the  others,  and  sell  and 
destroy  it,  without  being  liable  to  them  in  an  action  for 
the  conversion  of  the  common  property.  One  tenant  in 
common  may  maintain  an  action  against  a  stranger,  for  a 
conversion,  and  recover  his  separate  interest,  when  the 
non-joinder  is  not  pleaded  in  abatement.  ' 

Where  a  farm  is    let    on    shares,    for   cultivation,   and 
wheat  is  raised  thereon,  by  a  tenant,  the  straw  is  a  part 

1  Cow.  Tr.  619  ;  2  Blacks.  Comm.  180  ;  14  Wend.  265  ;  i  Hill? 
234;  15  Barb.  595  ;  34  Ala.  167  ;  17  Cal.  541  ;  19  Id.  617  ;  40  N.  H. 
403  ;  14  Vt.  214;  51  Ala.  434  ;  15  Barb.  333;  i  Wend.  380 ;  61  Barb. 
293  ;  4  Kent,  360  ;  Collyer  on  Part.  §  123. 

-  Tripp  V.  Riley,  15  Barb.  333  ;  Pierce  v.  Schenck,  3  Hill,  28  ; 
Gilbert  v.  Dickerson,  7  Wend.  449;  4  Camp.  272  ;  i  Saund.  291. 


490  THE    LAW    OF    PARTITION. 

of  the  crop,  and  belongs  to  the  owners  thereof;  unless 
there  is  stipulation  or  custom  to  the  contrary.  The  own- 
ers thereof  are  tenants  in  common  and  may  sever  their 
interests,  each  taking  his  individual  share  therein.  If 
this  severance  of  the  property  cannot  be  brought  about 
by  mutual  agreement,  it  may  be  brought  about  by  a  de- 
cree in  a  court  of  equity,  decreeing  the  division  of  the 
property  or  a  sale  thereof,  and  a  division  of  the  proceeds. ' 
Where  one  tenant  in  common  appropriates  the  whole 
of  the  personal  property  to  his  own  use,  and  shows  by  his 
actions,  and  by  such  appropriations,  clearly  a  determina- 
tion to  deprive  the  other  co-tenant  of  any  portion  of  the 
common  property,  an  action  of  trover  can  be  sustained 
between  the  co-tenants  for  a  conversion  of  the  property.  * 
Although  no  action  at  law  will  lie,  at  the  suit  of  one  ten- 
ant in  common,  against  another,  in  respect  to  the  com- 
mon property,  without  proving  a  loss,  destruction  or  sale 
of  the  property  by  a  defendant  ;  and  although  no  action 
at  law  can  be  maintained  by  one  tenant  in  common  for 
the  partition  of  such  property,  yet  a  court  of  equity  is 
competent  to  give  relief  in  such  cases,  by  decreeing  that 
such  property  shall  be  partitioned,  or  that  there  shall  be  a 
sale  of  the  same,  where  partition  is  impracticable,  and  a 
division  of  the  proceeds.  The  power  of  a  court  of  equity, 
and  its  jurisdiction,  is  expressly  to  meet  just  such  cases, 
where  no  adequate  remedy  exists  at  law.  '  It  is  within 
the  jurisdiction  of  a  court  of  equity  to  partition  personal 
property,  and  that  when  justice  requires  that  real  and 


3  Fobes  V.  Shattuck,  22  Barb.  568. 

4  Lobdell  V.  Stowell,  37  How.  Pr.  88. 

5  Tinney  v.  Stebbins,  28  Barb.  290  ;    Smith  v.  Smith,  4  Rand. 
95;   Kelsey  v.  Clay,  4  Bibb,  441.     See  15  Barb.  336. 


PARTITION    OF    PERSONAL    PROPERTY.  49 1 

personal  estate  be  sold  together,  and  the  proceeds  divi- 
ded, it  is  within  the  province  of  such  a  court  to  so  decree.  * 
Instances  of  co-tenancy  in  personal  property  is  lost  in 
the  ownership  of  vessels.  Often  vessels  or  ships,  upon 
sea,  are  owned  by  two  or  more  individuals  as  co-tenants, 
such  co-tenancy  arising  from  purchase,  or,  perhaps,  from 
inheritance  from  a  common  ancestor,  who  owned  the  ship 
or  vessel  in  his  life-time.  Where  a  vessel  is  owned,  in 
unequal  proportions,  by  several  persons,  who  cannot 
agree  upon  the  sale  or  for  the  working  of  it,  the  Supreme 
Court  of  New  York  has  jurisdiction  over  an  action 
brought  by  one  owner  to  procure  the  appointment  of  a 
receiver,  the  sale  of  the  vessel,  and  a  division  of  the  pro- 
ceeds among  the  owners  thereof.  It  is  questionable 
whether  the  admiralty  courts  can  exercise  such  jurisdic- 
tion or  not,  that  is,  to  order  a  sale  of  the  vessel  owned 
by  co-tenants  in  common,  excepting  in  those  cases  in 
which  the  opposing  interests  in  the  vessel  are  equal.  If 
the  admiralty  courts  have  such  jurisdiction  in  cases  where 
there  is  unequally  of  interests,  it  is  not  an  exclusivejuris- 
diction  to  that  court  but  concurrent  with  that  of  the 
common  law  courts.  The  court  of  equity  has  jurisdiction 
over  an  action,  brought  to  secure  a  partition  of  personal 
property  between  tenants  in  common  thereof  It  matters 
not  whether  such  property  is  a  vessel  to  be  used,  upon 
the  high  sea,  or  other  personal  property  so  long  as  there 
is  a  co-tenancy,  and  a  failure  to  agree  upon  the  part  of 
the  co-tenants,  a  court  of  equity  has  jurisdiction  over  the 
partition  of  the  property,  or  a  sale  thereof  and  a  division 
of  the  proceeds.  Such  court  is  competent  to  give  relief 
in  such  cases  by  making  the  decree   in   partition,   as  the 

«  Prentice  v.  Janssen,  7  Hun,  86. 


492  THE    LAW    OF    PARTITION. 

circumstances  of  the  case  or  facts  may  warrant,  or  decree 
a  sale,  where  the  partition  of  such  property  cannot  be 
had.  ' 

Proceedings  for  the  partition  of  personal  property  are 
unknown  at  common  law,  and  for  that  reason  courts  of 
equity  have  jurisdiction  of  such  actions. '  Such  action 
may  be  brought  by  one  co-tenant  in  common,  so  long  as 
there  is  no  dispute  in  regard  to  the  possession  of  the  prop- 
erty, but  the  bill  cannot  be  maintained  while  one  is  hold- 
ing the  property  in  adverse  possession,  ^  A  court  of 
equity  may  try  the  title  of  the  co-tenants  in  common  to 
the  property,  that  is,  where  a  suit  in  partition  is  brought 
for  the  purpose  of  disposing  of  personal  property,  and  one 
or  more  of  the  defendants,  alleged  that  they  owned  the 
title  to  the  property  sought  to  be  partitioned,  denying  the 
title  of  the  plaintiff  in  any  portion  of  it,  then  the  question 
of  title  may  be  passed  upon  by  a  court  of  equity.'"  When 
the  estate  of  the  common  ancestor  is  free  from  debt,  and 
those  who  inherit  such  estate  fail  to  invoke  the  action 
of  the  probate  court  to  give  to  them  their  respective 
shares  in  the  personal  property,  application  may  be  made 
to  a  court  of  equity  to  do  so  ;  and,  upon  such  application, 
all  the  facts  fully  appearing  to  sustain  such  relief,  a  court 
of  equity  will  grant  the  relief  required  by  the  pleadings, 
and  in  conformity  with  the  evidence,  or,  on  the  other 
hand,  such  parties  failing  to  take  upon  themselves  the 
benefits  of  the  jurisdiction  of  the  probate  court,  by  having 
that  court  settle  the  estate  and  allotting  to  each,  his  or 

7  Andrews  v.  Belts,  8  Hun,  322  ;  citing  28  Barb.  290 ;  4  Rand. 
95  ;  4  Bibb,  441  ;  15  Barb.  334;  22  Id.  570  ;  2  Lans.  211. 

8  Marshall  v.  Crow,  29  Ala.  278  ;  Irwin  v.  King,  6  Ired.  219; 
Savage  v.  Williams,  15  La.  Ann.  250. 

9  Drew  V.  Clemmons,  2  Jones  Eq.  312, 

w  Edwards  z/.  Bennett.io  Ired.  361;  Smith z/.  Dunn,  27  Ala.  315. 


PARTITION    OF    PERSONAL    PROPERTY.  493 

her  respective  share,  they  may  make  a  voluntary  partition 
of  the  property,  assuming,  of  course,  that  they  are  all  of 
full  age,  and  there  is  no  fraud,  collusion  or  unfairness  in 
the  transaction." 

Evidence  of  a  demand  and  refusal  is  held  sufficient  to 
establish  a  conversion  by  one  co-owner  of  grain  of  the 
portion  belonging  to  the  owner  other,  even  if  the  evidence 
shows  that  the  refusal  was  to  deliver  any  portion  of  the 
grain  belonging  to  a  co-owner  ;  and  such  refusal  precludes 
the  one  so  refusing  from  afterwards  raising  the  objection 
that  the  demand  was  for  too  much." 

11  Bethea  v.  Mc  Coll,  5  Ala.  308  ;  Miller  v.  Eatman,  11  Id.  709; 
Vanderveer  t/.  Alston,  16  Id.  494;  5  Wait  Act.  &  D.  89. 

12  HoUman  v.  Randall,  26  N.  Y.  Week.  Dig.  20. 


CHAPTER  XXXV. 


APPEAL. 


Provision  is  made  that  the  pany  feeling  aggrieved 
with  the  decision  or  decree  made  by  the  court,  may  make 
his  appeal  to  an  appellate  tribunal.  There  the  decision, 
decree,  order,  judgment  or  award  made  by  the  court  be- 
low may  be  reviewed,  modified  or  reversed  ;  and,  in  many 
instances,  sent  back  to  the  court  below  for  a  new  trial. 
Previous  to  the  enactment  of  the  Code  of  "Procedure  of 
New  York,  there  were  two  modes  of  reviewing  proceed- 
ings of  inferior  courts.  Judgments  at  common  law  were 
reviewed  by  writ  of  error,  while  decrees  in  chancery  were 
reviewed  by  an  appeal  from  the  chancellor  to  the  court 
for  the  correction  of  errors.  In  those  States  which  have 
not  as  yet  adopted  a  Code  practice,  the  common  law 
method  of  making  appeals  is  in  vogue,  unless  the  same 
has  been  superseded  by  statutory  provision.  But  in  those 
States  where  a  Code  of  Proceedure  has  been  adopted,  the 
method  of  appeal  is  prescribed  in  such  Code.  To  a  cer- 
tain extent  the  method  of  appeal  furnished  by  the  Code 
is  a  mere  substitute  for  the  old  writ  of  error,  the  change 
to  a  certain  extent  being  only  of  name.  It  is  the  same,  ex- 
cept that  there  is  some  change  in  the  manner  of  practice.' 

I  Gormly  v.  Mcintosh,  22  Barb.  271. 

[494] 


APPEAL.  495 

There  has  been  considerable  discussion  as  to  whether 
an  appeal  was  not  in  the  nature  of  a  new  action,  but  the 
better  decisions,  undoubtedly,  are  that  an  appeal  is  a  con- 
tinuation of  the  pending  action,  and  of  the  proceedings 
therein.  As  it  now  is,  upon  an  appsal  the  appellate  court 
reviews  and  acts  upon  that  which  has  been  placed  before 
the  court,  from  which  the  appeal  is  taken,  and  the  action 
or  judgment  of  such  court.'  The  nature,  scope  and  gen- 
eral character  of  an  appeal  varies  according  to  the  nature 
of  the  action  or  proceedings  that  are  brought  before  the 
appellate  court.  The  action  may  be  brought  before  the 
appellate  court  upon  the  ground  that  the  decision  by  the 
court  below  is  not  sustained  by  the  evidence  which  was 
presented  to  it.  On  the  other  hand,  the  appeal  may  be 
taken  purely  upon  the  ground  that  the  law  would  not  per- 
mit the  court  belaw  to  enter  or  decree  the  judgment  made 
by  them,  or  again  evidence  may  have  been  denied  or  ad- 
mitted improperly,  and  exceptions  taken  to  the  ruling  of 
the  courts,  pertaining  to  the  admission  of  such  evidence 
or  the  rejection  of  the  same,  and  the  appellant  relying  in 
the  appellate  court  upon  his  appeal,  purely  upon  what  he 
claims  to  be  the  mistakes  of  the  courts  below,  in  the  ad- 
mission or  rejection  of  evidence  presented  to  it.  The 
questions  raised  by  the  appeal  are  the  only  questions  that 
will  be  reviewed  by  the  appellate  court,  and  they  will  not 
assume  to  consider  any  question,  whether  it  be  of  law  or 
of  fact,  or  whether  it  pertain  to  the  ruling  of  the  court 
relative  to  evidence  or  an  action  belonging  to  the  jury 
only,  unless  the  same  shall  have  been  before  the  trial 
court,  and  considered  by  such  court  as  a  part  of  the  case, 

3  Rice  V.  Floyd,  i  Code  R.  122  ;  Enos  7'.  Thomas,  5  How.  Pr. 
361:  Whitley,  v.  Leed,  27  Id.  378  ;  Seeley  v.  Pritchard,  3  Duer.  669  ; 
Traver  v.  Nichols,  7  Wend.  434  ;  Matter  of  Gates,  26  Hun.  179. 


496  THE    LAW    OF    PARTITION. 

or  the  court  declined  to  consider  the  element  when  pre- 
sented. The  jurisdiction  of  the  appellate  court  upon  the 
appeal,  while,  perhaps,  not  technically  an  orig-inal  jurisdic- 
tion, must  be  exercised  by  them  originally,  so  far  as  the 
questions  are  before  it,  upon  which  it  is  to  pass  judgment. 
Affidavits  on  motion  for  a  new  trial  can  only  be 
brought  into  the  record  by  a  bill  of  exceptions  or  a  special 
order  of  court.  The  supreme  court  has  no  power  to  weigh 
conflicting  evidence  in  a  suit  in  equity  or  in  an  action  at 
law.  The  rule  is,  generally,  that  they  are  forbidden  to  dis- 
turb the  finding  of  the  trial  court,  made  upon  the  weight 
of  the  evidence.  This  is  especially  so  when  the  questions 
of  fact  litigated  in  the  case  have  been  settled  by  a  verdict 
of  a  jury,  and  those  questions  are  in  conflict.^  Appeals 
will  lie,  when  nothing  remains  to  be  done  except  to  en- 
force the  decree  of  the  court  below  ;  but  until  all  the 
rights  of  the  parties  have  been  finally  passed  upon  and 
settled,  the  decree  is  not  final,  and  an  appeal  from  it  will 
not  lie.  The  objection,  that  a  court  of  equity  has  no  jur- 
isdiction of  the  case,  raised  in  the  appellate  for  the  first 
time,  will  not,  as  a  rule,  be  considered.  Deliberate  con- 
cealment is  equivalent  to  deliberate  falsehood,  and  may 
be  taken  into  consideration  upon  appeal."  Appeals  should 
be  made  in  season.  A  lapse  of  time  of  great  length  is 
laches,  and  the  respondent  should  have  the  benefit  of  all 
the  laches  of  which  the  appellant  has  been  guilty.  When- 
ever the  time  for  making  the  appeal  is  prescribed  by 
statute,  courts  should  be  governed  by  that  time  ;  other- 
wise they  should  require  that  the  appellant  present  his 

*  McConnell -J/.  Huntington,  5  West.  R.  861:  Houston  v.  Bru- 
ner,  39  Ind.  376  ;  Lake  Erie  &  W.  R.  R.  Co.  v.  Griffin,  92  Id.  487. 
See  99  Ind.  261  ;  93  Id.  345  ;  75  Ind.  108 ;  65  Id.  72. 

5  Crosby  v.  Buchanan,  23  Wall.  (90  U.  S.)  420. 


APPEAL.  497 

case  in  due  time,  in  good  faith,  and  with  diligence.  When 
he  is  guilty  of  laches  by  reason  of  unreasonable  delay,  his 
appeal  should  be  dismissed/ 

An  interlocutory  judgment  is  not  a  final  decree.  The 
rule  is  laid  down  that  it  cannot  be  corrected  by  a  direct 
appeal  ;  that  the  parties  to  the  action  must  wait  until  a 
final  judgment  shall  have  been  entered.'  No  appeal  to 
the  court  of  appeals  is  authorized  by  statute,  prior  to  the 
entry  of  the  final  judgment.  Such  is  the  rule  which  has 
been  laid  down  by  the  Court  of  Appeals  of  New  York,  and 
that  an  order  in  proceedings  for  partition,  declaring  the 
rights  of  the  parties  and  appointing  commissioners  to 
make  partition,  is  not  final,  and  an  appeal  from  such  order 
cannot  be  sustained.'  A  decree  which  determines  the 
issues  as  set  forth  in  the  pleadings,  and  directs  a  partition 
of  the  property  accordingly,  and  in  accordance  with  the 
rights  of  the  parties,  as  determined  by  such  decree,  is 
regarded  as  final,  for  such  a  decree  leaves  nothing  to  be 
done  but  to  execute  the  directions  therein  contained.' 
This  rule  in  Texas  cannot  be  said  to  be  a  general  rule. 
Though  in  some  States,  to  avoid  the  difficulty  that  some- 
times arises  by  there  not  being  an  appeal  from  an  inter- 
luctory  judgment,  the  statute  authorizes  such  an  appeal." 

6  Coleman  v.  Lyne,  4  Rand.  454;  Mooersz^.  White,  6  Johns.  Ch. 
368  ;  Lacon  v.  Briggs,  3  Alk.  107  ;  Hercy  v.  Dinwoody,  4  Brown 
C.  C.  257  ;  Thompson  v.  Dean,  7  Wall.  342  ;  Stoval  v.  Banks,  10 
Id.  583. 

■^  Ivory  z/.  Delare,  26  Miss.  505. 

8  Beebe  v.  Griffing,  6  N.  Y.  465 ;  Cruger  v.  Douglass,  2  N.  Y. 
571.  See  Clowes  v.  Van  Antwerp,  4  Barb.  416 ;  Clester  v.  Gibson, 
15  Ind.  10;  Cook  t^.  Knickerbocker,  11  Id.  230;  Pipkin  v.  Allen, 
29  Mo.  229;  Durham  v.  Durham,  34  Id.  447;  Medford  v.  Harrell, 
3  Hawks,  41. 

«  McFarland  v.  Hall,  17  Tex.  676. 

1^  Cal.  C.   C.  Pro.  g  939;    Regan   7/.  McMahon,  43  Cal.   627; 
Shepherd  z/.  Rice,  38  Mich.  556  ;  Randies  v.  Randies,  67  Ind.  434. 
32 


49^  THE    LAW   OF   PARTITION. 

An  appeal  from  the  final  decree  brings  with  it  the  inter- 
locutory orders  that  may  have  been  entered  from  time  to 
time  during  the  progress  of  the  action."  When  objections 
are  taken  to  the  report  of  the  master  in  chancery,  if  no 
exceptions  are  taken  in  the  court  below,  such  objections 
cannot  be  sustained  on  appeal.^^ 

A  decree  for  the  sale  of  real  estate  by  a  trustee  for  the 
purpose  of  partition  cannot  be  reviewed  for  defects, 
errors  or  irregularities  in  the  proceedings,  though  appar- 
ent on  their  face,  by  exceptions  to  the  order  ratifying  the 
sale.  Such  defects,  errors  or  irregularities  can  only  be 
reached  and  corrected  by  a  direct  appeal  from  the  decree, 
or  by  a  bill  of  review  for  errors  apparent.  It  is  the  allega- 
tion as  set  forth  in  the  bill  or  complaint  that  confers  the 
jurisdiction  upon  the  court  and  determines  the  power  of 
the  court  to  decree  a  sale  of  the  property  sought  to  be 
partitioned  or  sold ;  and,  although  the  proof  may  be 
defective,  or  the  decree  passed  without  proof,  that  does 
not  in  any  way  affect  the  jurisdiction  of  the  court.  Such 
defects  may  show  error  in  the  exercise  of  jurisdiction,  but 
not  the  want  of  jurisdiction.  If  a  party  desires  to  avail 
himself  of  the  objection  of  the  want  of  proof,  he  should 
appear  and  defend.  He  cannot  allow  judgment  to  be 
taken  against  him,  by  default,  and  afterward,  feeling 
aggrieved  by  reason  of  such  judgment,  accept  or  receive 
relief  from  the  appellate  court  for  the  reason  of  insufficiency 
of  proof  in  the  trial  court.^^  If  the  court  had  jurisdiction, 
which  appeared  by  the  pleadings,  and  entered  a  judgment 

11  Ex  parte  Jordan,  4  Otto,  248. 

12  Kinsman  v.  Parkhurst,  18  How.  U.  S.  289  ;  McMicken  v. 
Perin,  18  Id.  507  ;  Hudgins  v.  Kemp,  20  Id.  45. 

13  Slingluff  z'.  Stanley,  5  Cent.  R.  609;  Tomlinson  v.  McKaig, 
5  Gill,  256;  Boigiano  z/.  Cooke,  19  Md.  373;  Gregory  7/.  Lenning, 
54  Md.  51. 


APPEAL. 


499 


upon  the  proof  above  in  accordance  with  the  pleadings, 
its  decree  must  be  executed,  unless  it  be  reversed  by 
regular  proceedings  had  for  that  purpose."  The  titles  of 
the  parties  or  co-tenants  should  be  shown  by  proof  The 
failure  to  do  so  is  a  defect,  which,  upon  proper  objection 
and  exception,  is  good  reason  for  appeal.^^  It  has  been 
held  that  the  principle  that  where  the  title  is  in  dispute, 
or  where  the  legal  title  is  doubtful,  the  complainant  should 
be  sent  to  a  court  of  law  to  establish  his  title  only  applies 
where  the  bill  shows  clearly  a  dispute  of  title,  or  where 
the  defendant  has  answered  or  alleged  or  shows  it.^^  The 
appellate  court  should  not  examine  into  the  merits  of  a 
decree  collaterally,  that  is,  if  the  court  making  the  decree 
had  proper  jurisdiction  to  do  so."  A  writ  of  appeal  in 
common  is  limited  to  final  decrees,  or  to  orders  involving 
the  merits  ;  it  does  not  extend  to  such  orders  as  are? 
merely  interlocutory,  or  to  decrees  by  consent  or  default. 
The  judgment  or  decree  appealed  from  should  be  final.^^' 
This  is  the  rule  in  Federal  courts  that  no  appeal  will  lie^ 
except  from  the  final  decree.  Courts  do  not  favor  appeals, 
from  a  mere  decree  respecting  costs  and  expenses.^^ 

In  equity  cases,  courts  have  been  more  liberal  in  allow- 
ing appeals  from  judgments  or  decrees  pertaining  to  costs 


1*  Patapso  Guano  Co.  v.  Elder,  53  Md.  463. 

15  Boone  v.  Boone,  3  Md,  Ch.  497  ;  Campbell  v.  Lowe,  9  Md. 
508  ;  Wilkin  v.  Wilkin,  i  Johns.  Ch.  1 1 1. 

i**  Chesapeake  &  Ohio  Canal  Co.  v.  Young,  3  Md.  480;  2  Dan. 
Ch.  Pr.  1202. 

17  Davis  V,  Helbig,  27  Md.  457  ;  Hunter  v.  Hatton,  4  Gill,  1 22. 

18  Keirle  v.  Schriver,  11  Gill  &  J.  405  ;  State  v.  Pepper,  7  Miss. 
348;  Syle  t/.  Llewellin,  i  Bland  Ch.  18;  McKim  7/.  Thompson,  Id. 
150. 

1'-*  Canter  v.  Am.  &  Ocean  Ins.  Co.,  3  Pet,  307;  Elastic  Fabric 
Co.  V.  Smith,  100  U.  S.  no. 


500  THE    LAW    OF    PARTITION. 

only.^"     "Final  judgment"   means    that  judgment  which 
determines   the    particular   cause   or    action    before    the 
court.^^     In  one  case,  where  the  main  question  was  as  to 
the  effect  of  the  partition  decree  upon  the  mortgage,  and 
whether  a  purchaser  of  a  portion  of  the  land  sold,  paying 
the  balance  due  on  the  mortgage  debt  after  exhausting 
the  proceeds  of  the  sale,  is  entitled  to  contribution  from 
the  owners  of  the  mortgaged   lands  not  sold, — his  right 
to  such  contribution  being  determined  by  the  appellate 
court, — the  case,  under  the  directions  of  that  court,  will 
go  back  to  the  circuit  court  to  decide  how  contribution 
should  be  made,  as  it  is  a  question  of  which  the  trial  court 
has  jurisdiction,  and  that  jurisdiction  should  not  be  disre- 
garded,  but  should   be  exercised  by  it."     Appeals  made 
from  decisions  of  a  trial  court  in  actions  or  matters  relat- 
ing to  a  decedent's  estate   should  be  made   in  conformity 
with    the    statutory    provisions    relating    to    decedents' 
estates.''     Where   the    statutory   law  governing    actions 
brought  in  partition  provides  a  special  manner  for  making 
an  appeal,  that  law  should  be  fully  complied  with  and 
explicitly  followed,  otherwise  the   appellate  court  would 
not  gain  jurisdiction   of  the   appeal  and  could  not  pass 
upon  it  ;  or  if  there  is  a  special  statutory  law  prescribing 
how  appeals  should  be  made  in  equity  cases,  or  in  actions 
relating  to  the  sale  of  real  estate,  the  statute  being  silent 
in  regard  to  appeals  in  partition  cases,  the  law  and  prac- 
tice   relating    to    cases   in  equity   or  real  estate  actions 

20  Trustees  v.  Greenough,  105  U.  S.  527. 

21  Weston  V.  Charleston,  2  Pet.  449 ;  Wilson  v.  Daniel,  3  Dall- 
401. 

22  Vogel  V.  Brown,  8  West.  R.  645. 

23  Rinehart  2/.  Vail,  i  West.  R.  542;  Seward  z/.  Clark,  67  I nd. 
289  ;  Helenberg  v.  Bennett,  88  Id.  540  ;  Browning  v.  McCracken, 
97  Id.  280. 


APPEAL.  501 

would  govern  and  would  be  the  proper  practice  for  the 
appellant  to  follow.  When  a  party  perfects  an  appeal  in 
accordance  with  the  requirements  of  the  statute,  as 
declared  by  the  supreme  court,  and  a  motion  to  strike 
the  cause  from  the  docket  is  overruled  by  the  court,  that 
ruling,  whether  erroneous  or  not,  is  the  law  of  that  case, 
and  must  stand,  and  a  subsequent  motion  by  the  appellee 
to  dismiss  the  appeal,  founded  upon  the  latter  decision, 
will  be  overruled."*  Submission  of  a  cause  to  the  appel- 
late court  by  agreement  waives  the  motion  that  might 
have  been  made  for  the  dismissal  of  an  appeal  for  the 
want  of  filing  of  the  bond  required.-^  A  writ  of  error  will 
not  lie  to  reverse  a  decree  removing  a  receiver,  although 
the  decree  or  order  gave  the  defendant  in  error  posses- 
sion of  the  property,  if  the  defendant  in  error  was  required 
to  give  bond  and  security,  and  all  moneys  which  might 
come  into  his  hands  were  subject  to  the  final  decree  which 
the  court  might  render  in  the  cause.  This  rule  is  laid 
down  in  Illinois  ;  and  further,  that  when  the  original  bill 
is  heard  on  its  merits  and  a  final  decree  rendered  which 
will  definitely  settle  the  rights  of  all  the  parties  to  the 
cause,  it  will  then  be  ample  time,  if  the  decree  is  errone- 
ous, for  either  party  to  appeal  or  sue  out  a  writ  of  error. 
This  last  principle  is  based  upon  the  fact  that  courts  do 
not  favor  an  appeal  from  any  decree,  except  that  whicii 
is  final.^ 

As  to  receivers,  the  rule  seems   to   be  that  a  receiver 
cannot  appeal   from  an  order  discharging  him  and  direct- 


24  Walker  v.  Heller,  i  West.  R.  595. 

25  Bake  v.  Smiley,  84  Ind.  212  ;  Davis  v.  Huston,  Id.  272.     Sec 
69  Id.  18 ;  90  Id.  520;  99  Id.  117. 

26  Farson  v.  Gorham,  4  West.  R.  iii. 


502  THE    LAW    OF    PARTITION. 

ing  him  to  turn  over  the  property.^^  Courts  must  be  per- 
mitted to  control  their  own  receivers  and  retain  or 
remove  them  as  they  think  proper.  The  authority  of  a 
court  in  the  retention  or  removal  of  a  receiver,  is  gen- 
erally discretionary  and  should  not  be  interfered  with  by 
an  appellate  court.  It  is  not  often  that  a  receiver  is 
appointed  in  partition  proceedings,  but  when  one  has  been 
appointed,  he  is  subject  to  the  mandates  of  the  court 
creating  him,  and  it  is  not  for  him  to  appeal  or  feel 
aggrieved  in  case  the  court,  in  its  discretion  and  wisdom, 
should  see  fit  to  remove  him.  A  receiver  is  a  creature  of 
the  court,  and  is  as  much  governed  by  the  court  in  the 
transaction  of  his  affairs  as  receiver,  as  he  is  protected 
by  such  court  in  obeying  its  lawful  commands.  An 
appeal  taken  from  a  final  decree  carries  to  the  appellate 
court  all  the  intervening  or  interlocutory  decrees  that 
have  been  made  in  the  action.^  Intervening  or  interlo- 
cutory decrees  are  not  admissible  to  prove  that  the  sub- 
ject matter  in  controversy  is  res  judicata  between  the 
parties."' 

The  principle  that  the  appeal  must  be  taken  from  the 
final  decree  is  well  illustrated  by  the  remarks  of  Justice 
Catron  in  an  action  in  the  United  States  court,  wherein 
the  complainant  sought  to  establish  an  equitable  title  to 
large  tracts  of  public  lands  in  Mississippi,  he  having 
offered  to  comply  with  the  law  providing  for  the  entry 
and  purchase   at  private    sale  for  the  several  tracts,  but 

27  High  on  Receivers,  §§  836,  847. 

28  Ayers  v.  Carver,  17  How.  U.  S.  591  :  Crosby  v.  Buchanan,  23 
Wall.  420,  aitte;   Ex  parte  Jordan,  74  U.  S.  252,  ante. 

29  Quarles  v.  Kerr,  i4Gratt.  48  ;  Whitaker  x/.  Bramson,  2  Paine, 
209;  McClane  z/.  Spence,  11  Ala.  172;  Auld  v.  Smith,  23  Kan. 
65  ;  New  Orleans  Nat.  Bankt/.  Adams,  3  Wood  U.  S.  21 ;  Baugh 
V.  Baugh,  4  Bibb,  556. 


APPEAL.  503 

was  prevented  from  making  the  entries,  and  from  obtain- 
ing the  necessary  certificates,  by  the  illegal  and  unwar- 
ranted acts  of  the  register  and  receiver  at  the  public  land- 
office.  This  was  alleged  in  his  complaint.  The  bill  was 
filed  against  the  defendants,  who  were  certain  individuals 
who  had  subsequently  entered  upon  and  paid  for  the  land. 
The  defendants  were  claimed  to  be  numerous,  two  of 
whom  filed  a  cross-bill  setting  up  titles  to  the  lands  in 
dispute  paramount  to  that  of  their  co-defendants  and 
asked  a  decree  to  that  effect,  which  cross  bill  the  court 
below  on  demurrer  dismissed.'"  Mr.  Justice  Catron  said  : 
*'  In  this  instance,  the  bill  and  cross-bill  are  but  one  suit, 
and  ought  regularly  to  have  been  heard  at  the  same  time, 
and,  if  an  appeal  was  prosecuted  from  the  decree  to  this 
court,  by  any  party  who  supposed  himself  to  be  aggrieved, 
the  whole  suit  would  necessarily  be  brought  up.  Here 
the  cross-bill  was  heard  and  dismissed,  pending  the 
original  suit  of  which  it  was  a  part.  The  decree  pro- 
nounced was  partial;  and  as  no  appeal  lies  from  any  but 
a  final  decree,  and  this  decree  not  being  final,  the  conse- 
quence is  that  this  court  has  no  jurisdiction  to  examine 
the  merits  presented  and  insisted  on  in  the  argument 
All  that  we  can  properly  do  is  to  dismiss  the  appeal, 
because  it  brought  up  nothing."  " 

The  complainant  has  a  right  to  discontinue  his  action 
at  any  time  before  judgment,  or  before  the  case  has  been 
submitted  to  the  jury.  There  are  a  few  exceptions  to 
this  general  rule,  but  the  rule  can  be  considered  as  the 
law  in  partition  cases.  In  case  of  the  refusal  of  the  trial 
court  to  allow  the  complainant  to  discontinue  his  action, 

30  Niles  V.  Carver,  17  How.  U.  S.  591,  ante. 

31  See  9  Wall.  809  ;  16  Id.  271  ;  i  Otto,  385  ;   1 1  Id.  187  ;  5  Saw. 
71,  where  Niles  v.  Carver  has  been  cited  by  the  court. 


504  THE    LAW    OF    PARTITION. 

and  an  interlocutory  judgment  is  rendered  thereafter,  an 
appeal  may  be  taken  from  the  order  or  judgment  of  the 
trial  court  thus  refusing  to  allow  the  complainant  to 
discontinue.  Such  appeal  would  carry  with  it  to  the 
appellate  court  the  interlocutory  judgment,  not  for  the 
purpose  of  having  a  review  of  that  judgment,  but  for  the 
purpose  of  informing  the  appellate  court  what  had  been 
done  as  against  the  rights  of  the  parties  desiring  to  dis- 
continue their  action.^-  An  action  of  partition  is  an  action 
of  equity;"^  and  as  such  it  is  to  be  treated,  so  far  as  the 
stating  of  issues  for  a  jury  to  decide,  as  an  ordinary  com- 
mon-law action.  Where  a  general  objection  is  made  to  a 
decision  of  a  court  on  the  trial  of  a  cause,  and  on  a  review 
thereof  it  appears  that  the  decision,  if  objectionable  at  all, 
is  so  only  in  part,  the  party  is  not  allowed  to  avail  himself 
of  the  objection,  for  the  want  of  precision  in  stating  it  at 
the  trial.^* 

An  application  to  open  a  judgment,  not  to  set  it  aside, 
is  addressed  to  the  sound  discretion  of  the  court  below, 
and  the  decision  of  that  court  is  not  reviewable  on  writ 
of  error,  the  appellate  court  presuming  that  the  discretion 
of  the  court  below  was  fairly  and  justly  exercised. ''^  A 
court,  in  opening  a  judgment,  has  power  to  prescribe  the 
terms  upon  which  the  judgment  is  opened,  as  it  is  but  a 
mode  of  allowing  the  defendant  a  hearing  on  the  merits, 
and  a  court  may  impose  such  terms  as  it  may  deem 
proper.^^ 

The  courts,  in  giving  construction  to  a  statute,  should 

32Furman  v  .  Furman,  12  Hun,  441. 

33  Hewlett  V.  Wood,  62  N.  Y.  75. 

34  McAllister  v.  Reab,  4  Wend.  483. 

35  Huston  V.  Mutual  Fire  Ins.  Co.,  i  Cent.  R.  365. 

36  McMurrayz/.  Eris,  9  P.  F.  S.  225  ;  Braddee  v.  Brownfield, 
2  W.  &  S.  279. 


APPEAL. 


505 


follow,  as  near  as  possible,  the  intent  of  the  legislature, 
and  should  do  so  with  reason  and  discretion,  though  such 
construction  seems  contrary  to  the  letter  of  the  statute. 
Where  the  intent  of  the  legislature  can  be  ascertained 
with  reasonable  certainty,  the  statute  will  be  construed 
in  accordance  therewith,  although  such  construction  may 
conflict  with  the  ordinary  meaning  of  the  letter.^  In 
general,  the  intent  of  the  legislature  must  be  found  in  the 
statute  itself.  The  mischief  existing  at  the  enactment, 
and  the  remedy  intended,  are  to  be  considered  by  the 
court  in  making  its  construction.^  In  construing  statutes 
pertaining  to  or  regulating  actions  affecting  real  property, 
the  rule  that  the  intent  of  the  legislature  must  be  placed 
upon  the  statute,  governs  to  the  same  effect  as  if  the 
statute  pertained  to  any  other  matter  or  any  other 
remedy.  The  construction,  if  possible,  placed  upon  the 
statute  by  the  court,  should  be,  so  far  as  within  their 
power  and  within  the  meaning  and  intent  of  the  legisla- 
ture, to  reconcile  such  statute  so  construed  to  the  com- 
mon law  governing  the  actions  and  the  rights  of  the 
parties.  The  failure  of  the  courts  to  do  so  is  proper 
reason  for  going  to  the  appellate  court,  that  the  statute 
might  be  construed  in  accordance  with  the  intent  of  the 

37  Tonnele  v.  Hall,  4  N.  Y.  140  ;  Simonds  v.  Powers,  28  Vt. 
354;  Brown  v.  Wright,  13  N.  J.  240;  Ryegate  v.  Wardsboro,  30 
Vt.  746  ;  Sprowl  v.  Lawrence,  33  Ala.  674. 

38  Tyman  v.  Walker,  35  Cal.  634;  State  v.  Nichoils.  30  L; 
Ann.  980;  Edger  v.  Randolph,  70  Ind.  331  ;  Ezekiel  v.  Dixon, 
Ga.  146;  Winslow  v.  Kimball,  25  Me.  493 ;  Sibley  7/.  Smith, 
Mich.  486  ;  Alexander  v.  Worthington,  5  Md.  471  ;  Catlin  v.  IIul 
21  Vt.  152;  United  States  7/.  Bowen,  100  U.  S.  508.  See  Swifts/ 
Luce,  27  Me.  285  ;  Whitney  v.  Whitney.  14  Mass.  88  ;  Maxwell  v 
Ccllins,  8  Ind.  38;  Bradbury  z/.  Wagenhorst,  54  Pa.  St.  180;  ic 
Minn.  118  ;  67  Mo.  408  ;  66  Mo.  423. 


La. 

3 

2 
Hull. 


506  THE    LAW   OF    PARTITION. 

legislature  and  within  the  rules   of  equity  so  far  as  pos- 
sible. 

A  court  of  equity  performs  the  like  functions  to  those 
performed  by  a  jury,  and  the  appellate  court  is  not 
inclined  to  review  the  decision  made  by  the  court  below, 
unless  under  circumstances  of  a  peculiar  and  urgent 
nature,  especially  when  the  decision  of  the  court  is  in 
settlement  of  controverted  facts.  A  court  of  equity  will 
not  interfere,  when  there  is  a  proper  remedy  at  law,  of 
which  the  court  has  jurisdiction.^' 

An  interlocutory  decree  is  usually  considered  a  neces- 
sity in  an  action  of  partition.  Where  the  circuit  court, 
after  hearing  the  evidence  in  the  action,  decreed  that  the 
complainants  were  entitled  to  two-sevenths  of  certain 
property,  and  then  referred  the  matter  to  a  master  in 
chancery  to  take  and  report  an  account  of  it,  and  then 
reserved  all  other  matters  in  controversy  between  the 
parties  until  the  coming  in  of  the  master's  report,  this 
was  not  such  a  final  decree  as  should  be  appealed  from  to 
the  appellate  court."  The  practice  of  the  United  States 
chancery  courts  differs  from  the  English  practice.  There, 
appeals  to  the  House  of  Lords  maybe  taken  from  an  inter- 
locutory order  of  the  chancellor."  The  special  term  has 
power  to  allow  amendments  to  be  made  to  the  pleadings. 
Where,  in  action  for  the  construction  of  a  will,  upon  appli- 
cation to  amend  the  complaint,  changing  the  nature  of 
the  action  to  one  for  partition,  the  trial  was  suspended, 
and  the  case  put  over  the  term  to  enable  the  plaintiff  to 
apply  at  special  term  for  leave  to  amend,  it  was  held, 
that  the  amendment  granted  cannot  properly  be  deemed 

->>  Dade  v.  Irwin,  2  How.  U.  S.  382,  391. 
40  Perkins  f.  Fourniquet,  6  How.  U.  S.  206. 
*i  Forgay  v.  Conrad,  6  How.  U.  S.  205. 


APPEAL.  507 

to  be  one  made  on  the  trial,  and  is  not,  therefore,  open  to 
the  objection  that  the  cause  of  action  was  changed  during 
the  trial,  without  an  opportunity  given  to  prepare  for  a 
defense  to  the  new  cause  of  action.  The  amendment  was 
one  that  the  special  term  had  power  to  grant  before  trial, 
and  the  court  having  suspended  the  trial  and  put  the  case 
over  the  term,  the  order  is  to  be  treated  as  one  made 
before  trial." 

Where  a  decree  in  a  partition  suit  awards  costs,  a 
notice  of  judgment  served  prior  to  the  taxation  and  entry 
of  the  costs  does  not  limit  the  time  for  appeal." 

42  Shannon  v.  Pickell,  2  N.  Y.  State  R.  160. 
*3  Thurber  v.  Chambers,  60  N.  Y.  29. 


ADDENDA. 


REMAINDERMEN. 

The  following  enactment  by  the  New  York  Legisla- 
ture became  a  law  since  the  chapter  in  this  work  upon 
remaindermen  was  in  type  ;  and  for  that  reason  is  given 
here,  and  is  to  be  read  in  connection  with  chapter  III., 
and  to  some  extent  it  changes  the  practice  in  New  York 
State,  as  laid  down  by  section  1533  of  the  New  York  Code 
of  Civil  Procedure,  as  it  appears  upon  page  34. 

CHAPTER   683. 

An  Act  to  amend  section  one  thousand  five  hundred  and 
thirty-three  of  the  Code  of  Civil  Procedure. 

Passed  June  24,  1887. 

The  People  of  the  State  of  New  York,  represented  in 
Senate  and  Assetnbly,  do  enact  as  follows  : 

Section  i.  Section  one  thousand  five  hundred  and 
thirty-three  of  the  Code  of  Civil  Procedure  is  hereby 
amended  so  as  to  read  as  follows  : 

§  1533.  Where  two  or  more  persons  hold  as  joint  ten- 
ants, or  as  tenants  in  common,  a  vested  remainder  or 
reversion,  any  one  or  more  of  them  may  maintain  an 
action  for  the  partition  of  the  real  property  to  which  it 
attaches,  according  to  their  respective  shares  therein, 
subject  to  the  interest  of  the  person  holding  the  particu- 
lar estate  therein,  but  no  sale  of  the  prmieses  in  such  an 
action  shall  be  made,  except  by  and  with  the  consent  in 
writing,  to  be  acknowledged  or  proved  and  certified  in 
like  manner  as  a  deed  to  be  recorded,  by  the  person  or 
persons  owning  and  holding  such  particular  estate  or 
estates  ;  and  if  in  such  an  action  it  shall  appear  in  any 
stage  thereof  that  partition  or  sale  cannot  be  made  with- 
out great  prejudice  to  the  owners,  the  complaint  must  be 
dismissed.  The  dismissal  of  the  complaint,  as  herein 
provided,  shall  not  affect  the  right  of  any  party  to  bring 
a  new  action,  after  the  determination  of  such  particular 
estate. 

§  2.  This  act  shall  take  effect  immediately. 
[508J 


FORMS. 


No.  1. 

Affidavit  on  Application  to  Surrogate  for 
leave  to  bring  Partition  Action  by  Infant. 

New  York  Code  Civ.  Pro.  |  1534. 

County,  ss.  : 
A.  B.,  of  the  city  of  ,  being  only  sworn,  says, 

that  he  is  the  father  of  C.  D.,  who  is  an  infant  child  of  the 
age  of  years,  and  who  resides  with  this  depon- 

ent, and  that  said  C.  D.  is  the  owner,  as  a  tenant  in  com- 
mon with  G.  H.  and  M.  N.,  of  the  equal,  undivided 
one  part  of  certain  real  estate,  situate  in  the  of 

,  in  the  county  of  ,  described  as 

follows,  to  wit  :     {^Insert  description?^ 

This  deponent  further  says,  that,  in  his  opinion,  a  suit 
should  be  authorized  to  be  brought  by  said  infant  for  the 
partition  of  the  aforesaid  property,  of  which  he  is  a  tenant 
in  common  with  the  above  named  persons,  and  that  the 
following  are  deponent's  reasons  for  such  opinion.  \^Hcre 
state  facts  as  required  by  the  Code.] 

[^Signatures  and  seals.] 

Sworn  to  before  me,  this         day 
of  18       . 

L.  P.,  Notary  Public. 

509] 


5IO  THE    LAW   OF    PARTITION. 

No.  2. 
Order  Granted  on  the  foregoing  Affidavit. 

New  York  Code  Civ.  Pro.  §  1534. 

[Title  of  cause.'] 

Upon  reading  and  filing  the  foregoing  affidavit  of  A. 
B.,  sworn  to  the  day  of  ,  18     ,  before 

L.  P.,  Notary  Public,  and  being  satisfied  by  the  affidavit 
aforesaid,  that  C.  D.,  who  is  an  infant  of  the  age  of 
years,  is  the  owner  of  the  equal,  undivided  of 

the  real  estate  described  in  said  affidavit,  situate  in  the 
town  of  in  the  county  of  ,  as  a  tenant 

in  common  with  others,  and  that  the  interest  of  said  infant 
will  be  promoted  by  his  bringing  an  action  for  the  parti- 
tion of  said  property. 

Now,  therefore,  on  motion  of  C.  K.,  attorney  for  said 
infant,  it  is  hereby  Ordered,  That  the  said  C.  D.  may,  and 
he  hereby  is  authorized  to  bring  such  action. 

,  Surrogate. 

Dated  ,18 


No.  3. 
Bond  of  G-nardian  ad  litem  in  Partition  Suit. 

New  York  Code  Civ.  Pro.  §§  812,  1536. 

Know   all    men   by  these  presents,  that  we,  [iiames, 
residence  and  business]  are  held  firmly  bound  unto 

,  in  the  sum  of  dollars,  to  be  paid 

to  the  said  C.  D.,  \or,  to  the  said  people,]  or  his  certain 
attorney,  executor,  administrators  or  assigns,  [or,  succes- 
sors or  assigns.] 

For  which  payment,  well  and  truly  to  be  made,  we 


FORMS.  511 

bind  ourselves  and  our  heirs,  executors  or  administrators, 
jointly  and  severally,  firmly  by  these  presents. 

Sealed  this  day  of  ,  in  the  year  of 

our  Lord  one  thousand  eight  hundred  and 

The   condition   of  this  obligation  is  such,  that  if  the 
above  bounden  shall  faithfully  discharge  the 

trust  committed  to  him  as  guardian  of  the  infant  plaint- 
iff [or,  defendant]  C.  D.,  in  an  action  for  partition  in 
the  court,  in  which  is  plaintiff  and 

and  others  are  defendants,  and  shall  render  a  just  and 
true  account  of  his  guardianship  in  any  court  or  place 
where  thereunto  required,  then  this  obligation  to  be  void, 
otherwise  to  be  and  remain  in  full  force  and  virtue 

State  of  New  York,  County,  ss.  : 

On  this  day  of  ,18       ,  personally  came 

before  me  ,  to  me  known  to  be  the  individuals 

described  in  and  who  executed  the  foregoing  instrument 
and  to  me  acknowledged  that  they  executed  the  same. 

,  Notary  Public. 

State  of  New  York,  County,  ss  : 

,  being  duly  sworn,  each  for  himself  deposes 
and  says,  that  he  is  one  of  the  sureties  named  in  the  fore- 
going bond  ;  that  he  is  a  resident  of  and  a  freeholder 
[or,  householder]  within  the  State,  and  is  worth  the  sum 
of  dollars,  over  all  the  debts  and  liabilities  which 

he  owes,  or  has  incurred,  and  exclusive  of  property  exempt 
by  law  from  levy  and  sale  under  execution. 

{^Signatures  and  scals.~\ 
Sworn  to  and  subscribed  before 
me,  this         day  of        ,  18     . 

I  hereby  approve  of  the  foregoing  bond  {or,  undertak- 
ing], as  to  its  form  and  manner  of  execution,  and  as  to 
the  sureties  therein  mentioned. 


Judge  \pr,  Justice]  of  court. 

Dated  ,18    . 


512  THE    LAW    OF    PARTITION. 


No.  4. 

Complaint  in  Action  for  tlie  Partition  of 
Heal  Property  held  under  Devisee 
containing  Provisions  for  Trust 
Estate  and  Remainders. 

New  York  Code  Civ.  Pro.  §  1542. 

[Title  of  cause. '\ 

The  complaint  of  the  above  named  plaintiff  respect- 
fully shows,  that  A.  B.,  the  brother  of  said  plaintiff,  late 
of  the  of  ,  in  the  county  of  , 

was,  at  the  time  of  making  his  last  will  and  testament,  as 
hereinafter  mentioned,  and  also  at  the  time  of  his  death, 
seized  in  fee  simple  absolute,  and  in  possession  of  those 
certain  lots,  pieces  or  parcels  of  land,  situated  in  the 
county  of  ,  bounded  and  described  as  follows, 

to  wit  [describe  property^  : 

And,  being  so  seized  and  possessed,  the  said  A.  B. 
died  on  or  about  the  day  of  ,  18     . 

And  the  said  plaintiff  further  shows,  that  the  said  A.  B., 
in  his  lifetime,  to  wit  :  on   or  about    the  day 

of  ,  18     ,  made  and  published  his  last  will  and 

testament  in  manner  and  form  as  required  by  law  to  pass 
real  and  personal  estate,  whereby,  after  certain  other 
devises  and  bequests,  he  devised  and  bequeathed  the  rest 
and  residue  of  his  property  in  the  following  words  and 
manner,  viz.  :  "  Sixth.  I  give,  devise  and  bequeath  all  the 
rest  and  remainder  of  my  real  and  personal  estate,  in 
equal  portions,  to  my  brothers  and  sisters  living  at  the 
time  of  my  decease,  and  the  portion  of  such  as  are  not 
now  living,  or  who  may  not  survive  me,  to  their  descend- 
ants, except  the  portion  of  my  brother,  C.  B.,  which  I 
devise  and  bequeath  to  my  executor,  hereinafter  named, 
in  trust,  to  receive  the  income  and  issues  thereof,  and 
apply  the  same  to  the  use  of  my  said  brother,  C.  B.,  dur- 
ing the  term  of  his  natural  life  ;  and,  after  the  death  of 


FORMS.  5  1  3 

my  said  brother,  I  give  and  devise  the  said  portion  to  his 
children  Hving  at  the  time  of  his  decease,  and  to  the 
descendants  of  such  of  his  children  as  shall  not  survive 
him." 

That  in  and  by  said  will,  the  said  testator  appointed 
the  defendant,  P.  F.,  to  be  executor  thereof. 

That  said  will  was  duly  proved  and  recorded  in  the 
surrogate's  court  of  county,  on  the  day 

of  ,  i8     ,  and   letters  testamentary  thereupon 

were,  on  the  day  of  ,  i8     ,  duly  issued 

to  the  defendant,  P.  F,,  by  said  surrogate's  court,  and  he 
has  duly  qualified  as  executor  of  said  will. 

That  the  said  rest  and  remainder  of  said  testator's  real 
estate,  mentioned  in  the  sixth  clause  of  said  will  above 
recited,  consisted,  at  the  time  of  his  death,  of  the  lots  above 
particularly  described. 

And  the  plaintiff  further  shows,  upon  information  and! 
belief,  that  he,  together  with  the  defendants,  C.  F.,  B.  F., 
and  G.  S.,  were  the  only  surviving  brothers  and  sisters  of 
the  said  testator  at  the  time  of  his  said  death,  except  C. 
B.,  and  the  defendants,  S.  B.,  J.  P.  and  L.  B.,  children  of  G.. 
B  ,  a  brother  of  said  testator,  who  died  during  said  tes-^ 
tator's  lifetime,  and  J.  G.,  S.  B.  and  F.  B.,  children  of  M. 
B.,  another  brother  of  said  testator,  who  died  during  the 
lifetime  of  said  testator,  were  the  only  descendants  of 
deceased  brothers  and  sisters  of  the  testator  living  at  the 
time  of  his  death. 

That  said  F.  B.  has,  since  the  death  of  the  said  testa- 
tor, by  deed  dated  ,  i8     ,  recorded  in  caunty 
clerk's  office,  in  book  No.              of  deeds,  at  page 
granted  and  conveyed  all  his  right,  title  and  interest  in 
and  to  the  property  devised  by  said  will  to  the  defendant, 

E.J. 

And  the  plaintiff  further  shows,  upon  mformation  and 
belief,  that  under  and  by  virtue  of  the  provisions  of  said 
will  and  the  grant  aforesaid,  the  plaintiff  and  the  defend- 
ants who  are  hereinafter  stated  to  be  so  seized,  are  seized 
and  possessed  of  those  certain  lots  and  pieces  of  land 
33 


514  THE    LAW    OF    PARTITION. 

hereinbefore  described,  as  tenants  in  common,  and  the 
rights  and  interests  of  the  plaintiff  and  the  defendants 
therein  are  as  follows,  viz.  : 

The  said  plaintiff  and  the  defendants,  C.  F.,  B.  F.  and 
G.  S.,  are  each  of  them  seized  of  and  entitled,  in  fee  abso- 
lute, to  one  undivided  thereof,  the  share  of  the 
defendant,  said  B.  F.,  being  subject  to  the  inchoate  right 
of  dower  therein  of  his  wife,  the  defendant,  P.  F. 

The  defendants,  S.  B.,  J.  P.  and  L.  B.,  are  each  of  them 
entitled  to  the  one-  part  thereof  in  fee  simple  ab- 

solute, and  the  defendants,  J.  G.,  S.  B.  and  F.  B.  are  each 
of  them  seized  of  and  entitled  to  one  equal,  undi- 
vided part  thereof,  in  fee  simple  absolute,  the 
share  of  said  L.  B.  being  subject  to  the  inchoate  right  of 
dower  therein  of  his  wife,  the  defendant,  J.  B. 

The  defendant,  P.  F.,  as  executor  and  trustee  named 
in  said  last  will  and  testament,  are  seized  of  and  entitled 
to  the  one  equal,  undivided  part  thereof  during 

the  lifetime  of  said  defendant,  C.  B.,  in  trust,  to  receive 
the  income  and  issues  thereof,  and  apply  the  same  to  the 
use  of  said  C.  B. 

The  defendants,  R.  B.  and  J.  B.,  the  only  now  living 
children  of  said  C.  B.,  have  equal  vested  estates  in  remain- 
der in  the  portion  devised  in  trust  as  aforesaid,  subject  to 
open  and  let  in  any  children  of  said  C.  B.  who  may  be 
born  hereafter,  and  the  estate  of  each  of  them  being  lia- 
ble also  to  be  divested  by  his  or  her  death  during  the  life- 
time of  said  C.  B.,  and  to  vest  in  the  survivors  and  the 
descendants  of  such  of  said  children  of  said  C.  B.  as  shall 
be  dead,  leaving  descendants,  at  the  time  of  said  portion 
being  so  divested. 

And  the  defendants,  J.  B.  and  M.  B.,  the  children  of 
said  R.  B.,  have  contingent  interests  in  said  portion  so 
left  in  trust,  and  in  case  of  their  said  father  dying  in  the 
lifetime  of  said  C.  B.,  they,  or  such  one  of  them  as  shall 
survive  said  C.  B.,  will  be  entitled  to  share  equally  with 
the  children  and  other  descendants  of  said  C.  B.,  who  may 
be  living  at  the  death  of  said  C.  B.,  in  the  portion  so  left 
in  trust. 


FORMS.  5  1 5 

The  defendant,  H.  B.,  wife  of  R.  B.,  has  no  present 
interest  in  said  premises  ;  but  would,  on  the  death  of  said 
C.  B  ,  become  entitled  to  an  inchoate  rig-ht  of  dower  in 
such  part  of  said  premises  as  should,  by  that  event,  vest 
absolutely  in  fee  simple  in  her  husband. 

The  defendant,  P.  F.,  is  the  husband  of  said  defend- 
ant, C.  F.  [and  has  had  living  issue  by  her],  and  the  inter- 
est of  said  C.  F.  is  subject  to  the  rights  if  any,  which  her 
said  husband  may  have  therein  as  such. 

That  the  plaintiff  and  the  defendants  [naming  thein\ 
heirs  at  law  of  A.  B.,  have  a  contingent  interest  also  in 
said  portion  so  left  in  trust,  as  the  only  persons  now 
living  who  would,  as  the  heirs  at  law  of  said  A.  B.,  the 
testator  aforesaid,  be  entitled  to  the  said  portion  so  held 
in  trust,  in  case  said  C.  B.  should  die  leaving  no  children 
or  descendants  of  children  him  surviving ;  and  in  case 
they  should  become  so  entitled,  the  defendants  {naming 
wives  of  heirs  at  law],  if  living,  would  become  entitled  to 
inchoate  rights  of  dower  in  such  part  of  said  premises  as 
should  vest  in  their  said  husbands,  and  the  shares  of  said 
[name  Jieirs  at  law  who  have  living  husbands]  would  be 
subject  to  the  rights  which  their  husbands  might  have 
therein  as  such  husbands,  if  living. 

That  the  plaintiff  and  all  of  the  defendants  are  of  full 
age,  excepting  the  defendants  [naming  them],  who  are 
minors  under  the  age  of  fourteen  years,  and  the  defend- 
ants [naming  them],  who  are  minors  upwards  fourteen 
years  of  age. 

That  the  defendant,  O.  B.,  as  the  widow  of  said  A.  B  , 
is  seized  of  a  right  of  dower  in  said  premises,  which  has 
not  been  admeasured. 

[If  there  are  defetidants  haviiig  shares  or  interests  in 
the  property  who  are  laiknown,  or  whose  names,  or  part  of 
whose  names  are  unknown,  say  :]  that  tlie  undivided 
part  of  said  property  belongs  to  the  defendant,  R.  H. 
[stating  nature  of  interest  and  how  derived] ;  that  the  place 
of  residence  of  said  R.  H.  [if  living]  is  unknown  to  the 
plaintiff,  and  cannot  be  ascertained  by  him. 


5l6  THE    LAW    OF    PARTITION. 

Or,  that  the  name  of  the  defendant  who  owns  the 
undivided  part  of  the  premises  [^stating-  nature  of 

interest  and  how  derived\  is  unknown  to  the  plaintiff,  and 
cannot  be  ascertained  by  him. 

Or,  that  some  person  or  persons,  to  the  plaintiff  un- 
known, have  estates  or  interests  in  said  property,  the 
nature  and  conditions  of  which  are  to  the  plaintiff  un- 
known. 

\0r,  otherwise^  as  the  case  may  require^ 

That  the  land  and  premises  hereinbefore  described,  of 
which  partition  is  desired,  are  the  only  real  estate  owned 
by  all  the  parties  to  this  suit  as  tenants  in  common,  and 
in  which  no  other  person  is  interested,  and  that  there  are 
no  specific  liens  or  incumbrances  upon  the  said  lands  and 
premises  against  any  of  the  parties  to  this  suit  \_or,  any 
liens  or  incumbrances  maybe  set  forth  affecting  the  whole 
property,  or  any  interest  therein.] 

The  plaintiff  therefore  prays  that  partition  and  divi- 
sion of  the  real  property  hereinbefore  mentioned  and 
described  may  be  made  by  and  under  the  direction  of  this 
court,  between  said  plaintiff  and  said  defendants,  accord- 
ing to  their  respective  rights  and  interests  therein,  and 
that  commissioners  may  be  appointed  by  the  court  for  the 
purpose  of  making  such  partition,  or  in  case  a  partition  of 
said  premises,  or  of  any  part  thereof,  cannot  be  made  with- 
out great  prejudice  to  the  owners  thereof,  then  that  the  said 
premises,  or  such  part  thereof  as  cannot  be  divided,  may 
be  sold  by  and  under  the  direction  of  this  court,  and  that 
the  proceeds  of  the  sale,  after  paying  the  costs  and 
expenses  of  this  suit,  may  be  divided  among  the  owners 
thereof,  according  to  their  respective  rights  and  interests 
therein,  and  that  plaintiff  may  have  her  costs  of  this  suit, 
and  such  other  and  further  relief  as  may  be  just. 

J.  H.,  Plaintiff's  Attorney, 

\_Offi,ce  address^ 

{Verification  as  prescribed  by  the  Code.^ 


FORMS. 


No.  5. 


517 


Complaint  in  Action  for  Partition  of  Resl 
Property  among  Heirs  at  Law. 

New  York  Code  Civ.  Pro.  §  1542. 

[Title  of  cause  ?^ 

The  complaint  of  the  above  named  plaintiff  respect- 
fully shows,  that  L.  H.,  of  ,  in  the  County 
of  ,  was  in  his  lifetime  seized  in  fee  simple  and 
in  possession  of  the  following  described  real  estate,  to 
wit  :  [insert  description.'\ 

That  the  said  L.  H.,  being  so  seized  of  the  above 
described  property,  died  on  the  day  of  ,  18     , 

intestate,  leaving  the  defendant,  C.  H.,  his  widow,  and 
said  plaintiff  and  the  defendants,  E.  C,  wife  of  B.  C, 
deceased,  his  children,  and  S.  H.  and  E.  H.,  his  grand- 
children, being  children  of  H.  H.,  a  deceased  son  of  the 
said  L.  H.,  his  only  heirs  at  law. 

That  by  the  death  of  the  said  L.  H.,  the  plaintiff,  A.  H., 
and  said  defendants,  E.  C,  wife  of  B.  C,  deceased,  S.  H. 
and  E.  H.  became  seized  in  fee  as  tenants  in  common,  by 
descent  from  the  said  L.  H.,  of  the  above  described  prop- 
erty,— that  is  to  say  :  the  plaintiff  and  A.  H.  and  E.  C, 
each  became  seized  of  the  one  equal  undivided  fourth  part 
of  the  said  property,  and  the  said  S.  H.  and  E.  H.  became 
seized  each  of  one  undivided  eighth  part  thereof,  which 
would  have  belonged  to  the  said  H.  H.  had  he  survived 
the  said  L.  H.,  each  of  the  said  portions  being  subject, 
however,  to  the  right  of  dower  of  the  said  C.  H.,  widow 
of  the  said  L.  H. 

That  the  defendant,  J.  P.,  of  ,  is  the  owner  of 

a  mortgage  upon  the  above  described  property,  executed 
by  the  said  L.  H.  and  C.  H.,  his  wife,  to  him,  dated  , 

18     ,  and  upon  which  is  due  and  unpaid  the  sum  of 
dollars,  with  interest   thereupon  from   the  day 

of  18     . 


5l8  THE    LAW    OF    PARTITION. 

That  the  dower  of  the  said  C.  H.,  widow  of  L.  H.,  in 
the  said  premises,  has  never  been  admeasured. 

That  the  said  S.  H.  and  E.  H.  are  infants,  said  S.  H. 
being  upward  of  fourteen  years  of  age,  and  said  E.  H. 
being  under  fourteen  years  of  age. 

And  the  plaintiff  prays  that  partition  may  be  made 
among  the  parties,  according  to  their  respective  rights 
and  interests  therein,  and  that  commissioners  may  be 
appointed  by  the  court  for  the  purpose  of  making  such 
partition,  or,  in  case  a  partition  of  said  premises,  or  of  any 
part  thereof,  cannot  be  made  without  great  prejudice  to 
the  owners  thereof,  then  that  the  said  premises,  or  such 
part  thereof  as  cannot  be  divided,  may  be  sold  by  and 
under  the  direction  of  this  court,  and  that  the  proceeds 
of  the  sale,  after  paying  the  costs  and  expenses  of  this 
suit,  may  be  divided  among  the  owners  thereof,  according 
to  their  respective  rights  and  interests  therein,  and  that 
the  plaintiff  may  have  her  costs  of  this  suit,  and  such 
other  and  further  relief  as  may  be  just. 

F.  G.,  Attorney  for  Plaintiff, 

{Office  address  J] 

[  Verification  as  prescribed  by  th£  Code.} 


No.  6. 

Notice  to  "be  annexed  to  Strnimons  served  by 

Publication,  or  without  the  State  upon 

unknown  Owners  in  Partition  Suit. 

New  York  Code  Civ.  Pro.  ||  442,  1541. 

To  : 

The  foregoing  summons  is  served  upon  you  by  publi- 
cation, pursuant  to  an  order  of  [fiame  of  judge, 
or  his  official  titled  dated  the        day  of  ,18         , 


FORMS.  519 

and  filed  with   the  complaint  in  the  office  of  the  clerk 
of  ,  at 

The  object  of  this  action  is  to  obtain  the  partition,  or 
sale  and  division  of  the  proceeds  of  the  property  described 
as   follows    \dcscription\  and   to   obtain   such   other    or 
further  relief  as  may  be  proper,  with  costs  of  this  action. 
Dated  ,18 

,  Plaintiffs  Attorney. 


No.  7. 
General  Form  of  Complaint. 

{Title  ?^ 

The  plaintiff  above  named  complains  of  the  defendants, 
and  alleges  : 

First.  That  the  plaintiff  and  the  defendants  Y.  and 
Z.  are  the  owners  of  and  possess  as  tenants  in  common 
\or  joint  tenants],  the  following  described  real  estate, 
situated    in    the   county  of  ,  to  wit  \_particularly 

describe  the  premises^  ;  and  that  the  plaintiff  desires  a 
partition  of  the  same. 

Second.  That  the  plaintiff  has  an  estate  of  inheritance 
therin  to  the  extent  of  one  undivided  third  interest  in  the 
fee  thereof  [^r  otherwise,  as  the  case  may  bc'\,  and  that 
each  of  the  said  defendants  Y.  and  Z.  have  a  similar 
estate  of  one  undivided  third  interest  therein  [or  other- 
wise, according  to  the  fact. '\ 

Third.  That  there  are  no  liens  or  incumbrances 
thereon  appearing  of  record,  and  that  no  person  other 
than  the  plaintiff  and  said  defendants  arc  interested  in 
said  premises  as  owners  or  otherwise. 

Wherefore,  the  plaintiff  prays  judgment  : 

For  a  partition  and  division  of  the  said  premises, 
according  to  the  respective  rights  of  the  parties  aforesaid  ; 


520  THE    LAW   OF    PARTITION. 

or,  if  a  partition  cannot  be  had  without  material  injury  to 
those  rights,  then  for  a  sale  of  the  said  premises  and  a 
division  of  the  proceeds  between  the  parties,  according  to 
their  rights,  after  payment  of  the  costs  of  this  action. 


No.  8. 
Another  Form. 

[Title. 1 

The  plaintiff  above  named  complains  of  the  defendants, 
and  alleges  : 

First.     That  on  or  about  the         day  of  ,  i8     , 

one  C.  B.  died  intestate,  seized  in  fee  of  the  following 
described  real  property  [give  dcsci-iption  thereof]  : 

Second.  That  the  said  C.  B.  left  M.  B.,  his  widow,  one 
of  the  defendants,  who  is  entitled  to  dower  in  said 
premises. 

Third.  That  the  said  deceased  C.  B.  left  as  his  chil- 
dren and  only  heirs  at  law  the  plaintiff  and  \^set  out  names 
of  all  the  heirs,  and  if  any  are  minors  so  state],  and  ten- 
ants in  common  with  the  plaintiff  in  said  premises. 

Fourth.  That  the  plaintiff  and  defendants  each  are 
entitled  as  such  heirs,  subject  to  said  dower,  to  an  undi- 
vided {state  proportionate  share  of  each]  of  the  said  real 
property.  [^If  there  are  incumbrances  iipon  the  premises 
the  holders  should  be  made  parties,  and  a  particular  state- 
ment of  the  incumbrances  made.] 

Wherefore,  the  plaintiff  demands  judgment :  that  the 
shares  of  the  parties  as  above  alleged  in  and  to  said  real 
property  be  confirmed  ;  that  partition  thereof  be  made, 
or,  if  the  same  cannot  be  equitably  divided,  then  that  a 
sale  of  said  premises  and  division  of  the  proceeds  may  be 
made  between  them,  according  to  their  respective  shares, 
and  that  such  other  orders  may  be  made  as  shall  be 
deemed  just  in  the  premises. 


FORMS. 


521 


No.  9. 

Another  General  Form. 

lTitle:\ 

First.  That  the  plaintiff  and  the  defendants  Y.  and 
Z.,  own  and  possess,  as  joint  tenants  lor,  as  tenants  in 
common],  the  following  described  premises  [i>arHcular 
description  of  the  premises']  ;  and  that  the  plaintiff  is  de- 
sirous of  a  partition  of  the  same. 

Second.  That  the  plaintiff  has  an  estate  of  inheritance 
therein  of  one  undivided  fourth  interest  in  the  fee  thereof 
\or  other  estate']. 

Third.  That  each  of  the  defendants  [co-tenants]  have 
a  similar  estate  of  one  undivided  fourth  interest  in  the 
same  [or  otheriuise\ 

Fourth.  [  Where  there  are  unknozvn  owners. )  That  W. 
X.,  who,  in  his  life-time,  had  an  estate  of  inheritance 
therein  of  one  undivided  fourth  interest  in  the  fee  \or 
otherwise],  several  years  since  removed  from  this  State 
to  ;  that  he  subsequently  married,  and  had  chil- 

dren, some  of  whom  are  now  living  ;  but  their  names  and 
places  of  residence  are  wholly  unknown  to  the  plaintiff, 
and  although  he  has  made  diligent  inquiries  for  that 
purpose,  he  cannot  ascertain  the  same,  or  either  of  them; 
that  said  W.  X.  and  his  said  wife  are  now  dead  ;  and  that 
said  children  and  heirs,  or  the  heirs  at  law  of  any  who 
may  be  dead,  are  collectively  entitled  to  the  undivided 
fourth  part  of  said  premises  to  which  said  W.  X.  would 
be  entitled,  if  living. 

Fifth.  [  Where  an  infant  is  a  party:]  That  the  plaintiff 
owns  no  other  land  in  this  State  in  common  with  the  said 
[co-tenants  j. 

Sixth.  \_Where  the  lands  are  subject  to  doiver.]  That 
the  defendant  [doweress]  is  the  widow  of  M.  N.,  the 
father  of  the  said  [co-tenants],  from  whom  they  inherited 
said   premises  ;    and,  as   such   widow,  claims   a   right    of 


5  22  THE   LAW    OF    PARTITION. 

dower  which  has  not  been  admeasured  in  \the  following 
described  part  of]  said  premises. 

Seventh,  {^Whei-e  they  are  subject  to  a  judgment. \ 
That  the  defendant  [judgment  creditor]  holds  a  judgment 
recovered  by  him  \or,  by  one  M.  N.,  and  thereafter  duly 
assigned  to  him],  duly  given  in  the  court  \or,  in  an  action 
before  O.  P.,  justice  of  the  peace  in  and  for  the  town 
of  ],  on  or  about  the  day  of  ,   i8     , 

against  \one  or  more  of  the  co-tc7iants\  for  the  sum 
of  dollars  ;  which  judgment  was,  on  the 

day  of  ,  i8     ,  docketed  in  said  county  of  {the 

place  where  the  premises  are  situated^,  and  remains  un- 
paid and  unsatisfied  of  record. 

Eighth.       {Where   they   are   subject   to    a    viortgage.'] 
That  the  defendant  [mortgagee]  holds  a  mortgage  upon 
the  said  interest  of  [one  of  the  co-tenants]  for 
dollars,  payable  on  the  day  of  ,  i8     ,  with 

interest  from  the         day  of  ,  i8     . 

Wherefore,  the  plaintiff  asks  judgment  for  [an  account- 
ing, and]  a  partition  and  division  of  said  promises  accord- 
ing to  the  respective  rights  of  said  parties  ;  or,  if  a  parti- 
tion cannot  be  had  without  material  injury  to  those  rights^ 
then  a  sale  of  said  premises,  and  a  division  of  the  proceeds 
between  the  parties  according  their  rights,  after  payment 
of  the  costs  of  this  action. 

The  Same,  Setting  forth  Sources  of  Title. 

First.     That  on  or  about  the         day  of  ,  i8     , 

C.  B.,  being  owner  in  fee  of  the  real  property  hereinafter 
described,  died  intestate  as  to  the  same,  which  real  prop- 
erty is  described  as  follows  :  [description.'] 

Second.  That  the  said  C.  B.  left  W.  B.,  his  widow, 
one  of  the  defendants,  who  is  entitled  to  dower  in  said 
premises. 

Third.  That  subject  to  said  dower  the  premises  de- 
scended to  the  following  named  persons,  the  only  heirs  of 
the  deceased  : 


FORMS. 


523 


1.  The  plaintiff,  A.  B.,  who  is  a  son  of  said  C.  B.,  de- 
ceased. 

2.  The  defendant,  E.  B.,  a  daughter  of  the  said  C.  B., 
deceased,  and  wife  of  one  L.  B.,  of  county,  in 
the  State  of 

3.  The  defendants,  F.  M.  and  G.  M.,  minor  children  of 
one  F.  B.,  a  daughter  of  said  C.  B.,  deceased.  The  said 
F.  B.  intermarried  with  the  defendant,  H.  M.,  and  after- 
ward died  intestate,  leaving  issue  of  said  marriage  F.  M. 
and  G.  M.,  her  only  children  and  heirs,  who  reside  in  the 
county  of  ,  and  for  whom  their  father,  H.  M., 
who  resides  in  the  county  of  ,  has  been  duly 
appointed  guardian  by  the  probate  court  of  said  county. 
The  said  H.  M.  is  tenant  by  the  curtesy  of  the  estate  of 
said  children. 

4.  G.  B.,  a  son  and  only  heir  of  one  H.  B.,  deceased. 
The  said  H.  B.  was  a  son  of  said  D.  B.,  deceased.  The 
said  G.  B.,  after  said  estate  was  cast  upon  him  by  descent 
as  aforesaid,  conveyed  his  estate  in  said  premises,  by  deed 
.duly  executed,  to  the  defendant  X.,  who  resides  in 

Fourth.  The  parties  above  named  have  now  the  fol- 
lowing undivided  estate  in  said  premises  : 

1.  The  plaintiff,  one  undivided  [fourth]  in  fee. 

2.  The  defendant  E.  B.,  one  undivided  [fourth]  in  fee. 

3.  The  defendants  F.  M.  and  G.  M.,  each  one  undivided 
[eighth]  in  fee,  subject  to  the  curtesy  of  their  father, 
H.  M. 

4.  The  defendant  X.,  one  undivided  [  fourth]  in  fee. 

For  AdmeasTirement  of  Dower. 

First.  That  the  plaintiff  was  married  to  C.  B.  in  the 
year  ,  and  lived  and  cohabited  with  him    until   his 

death,  which  was  on  the         day  of  ,  18     . 

Second.  That  the  said  C.  B.,  during  said  coverture  of 
the  plaintiff,  was  seized  of  an  estate  of  inheritance  of  and 
in  the  lands  situated  in  ,  and  bounded  and  de- 

scribed as  follows  :  \dcscription  of  the  premise s!\ 


524  THE    LAW    OF    PARTITION. 

Third.  That  the  defendant  Z.  is  a  son  and  heir  of 
said  C.  B.,  of  full  age  ;  and  the  defendant  Y.  is  an  infant 
son  and  heir  of  said  C.  B. 

Fourth.  That  said  C.  B.  left  a  will,  which  was  duly- 
proved  and  recorded  in  the  office  of  the  surrogate  of  , 
on  or  about  the  day  of  ,  18  ,  by  which  he 
devised  the  premises  [or  designate  what  portion  was 
devised^  to  the  defendant  W.  for  life,  with  remainder  over 
to  the  defendants. 

Wherefore,  the  plaintiff  asks  judgment  for  one  equal 
undivided  third  of  the  premises,  as  and  for  her  dower, 
and  that  it  may  be  admeasured  and  set  off  to  her,  and 
for  her  costs. 

To  compel  the  Determination  of  Claims  to 
Real  Property. 

First.     That   on  the  day  of  ,  18     ,  one 

M.  N.  was  seized  in  fee  simple  \or  otherwise^  and  pos- 
sessed of  the  following  described  premises  :  \J)articular^ 
description  of  premises^ 

Second.  [Where  plaintiff  claims  by  descent  or  devise."] 
That  on  that  day,  being  so  seized  and  possessed,  said  M. 
N.  died,  leaving  the  plaintiff  his  sole  heir  [or,  leaving  his 
last  will  duly  made,  which  was  on  the         day  of  , 

18  ,  duly  proved  and  admitted  to  probate  by  the  sur- 
rogate of  county,  which  will  contained  a  devise 
to  the  plaintiff  of  said  premises  ;  or,  of  an  estate  of  life, 
or  otherwise,  in  said  premises,  of  which  the  following  is  a 
copy:   [copy  of  devise.'] 

[Or,  where  he  claims  by  grant.]  That  on  that  day, 
being  so  seized  and  possessed,  said  M.  N.,  by  his  deed 
under  his  hand  and  seal,  dated  on  that  day,  duly  bargained, 
sold  and  conveyed  said  premises  to  the  plaintiff 

Third.  That  as  such  heir  [or,  devise  ;  or,  grant  ;  or, 
grantee],  the  plaintiff  has  an  estate  therein  in  fee  [or,  for 
life  ;  or,  for  years]. 

Fourth.     That  said  premises    now   arc,  and  at  and  for 


FORMS. 


525 


three  years  before  the  time  of  bringing  this  action,  were 
in  the  actual  possession  of  the  plaintiff,  and  for  three 
years  next  previous  were  in  the  actual  possession  of  the 
plaintiff  and  the  said  M.  N. 

Fifth.  That  the  defendant  unjustly  claims  title  to 
said  premises  in  fee  [or,  to  an  estate  for  life  in  said 
premises  ;  or,  to  an  estate  for  years  in  said  premises]. 

Wherefore,  the  plaintiff  demands  judgment  that  the 
defendant,  and  all  persons  claiming  under  him  by  title 
accruing  subsequent  to  the  commencement  of  this  action, 
be  forever  barred  from  all  claim  to  any  estate  of  inherit- 
ance or  freehold,  or  to  any  term  of  years  not  less  than 
ten,  in  the  said  premises,  and  for  costs  of  this  action. 

Another  Complaint  in  Partition. 

\Title  of  action?^ 

The  complaint  of  A.  B.,  the  plaintiff  herein,  respect- 
fully shows,  that  G.  B.,  late  of  the  city  and  county  of 
New  York,  deceased,  late  father  of  the  plaintiff,  was,  in 
in  his  life-time  and  at  his  death,  seized  in  fee  simple  of  the 
following  described  real  estate,  to  wit  :  {describe  premises 
particularly^ 

That  the  said  G.  B.,  being  so  seized  as  aforesaid  of 
the  above  described  property,  died  on  or  about  the  tenth 
day  of  December  last  past,  leaving  C.  B.,  his  widow,  and 
this  plaintiff,  and  the  defendants  E.  B.,  D.  B.  and  L.  B., 
his  children,  him  surviving  ;  that  at  the  time  of  the  death 
of  the  said  G.  B.  all  the  defendants  were  of  full  age,  and 
they  then  resided  and  all  do  still  reside  within  this  State. 

And  the  plaintiff  further  shows  that  the  dower  of  the 
said  widow,  C.  B.,  has  never  been  admeasured  or  in  any  way 
set  apart  for  her  use  from  the  estate  of  the  said  G.  B.;  that 
this  plaintiff  is  seized  in  fee  simple  and  entitled  to  the 
undivided  one  fourth  part  of  the  said  estate  ;  that  the 
defendant  E.  B.  is  seized  in  fee  simple  and  entitled  to  the 
undivided  one  fourth  part  of  said  estate  ;  that  tlie  defend- 
ant D.  B.  is  seized  in  fee  simple  and  entitled  to  the  undi- 


^26  THE    LAW    OF    PARTITION. 

vided  one  fourth  part  of  the  said  estate  ;  and  the  defendant 
L.  B.  is  also  seized  in  fee  simple  and  entitled  to  the  undi- 
vided one  fourth  part  of  the  said  estate  ;  that  each  of  said 
undivided  one  fourth  parts  of  said  estate  is  subject  to  the 
dower  right  of  the  said  C.  B.,  and  that  there  are  no  other 
specific  liens  and  incumbrances  against  the  said  estate, 
or  any  part  thereof ;  and  that  the  real  estate  described  in 
this  complaint  is  the  only  real  estate  owned  in  commbn 
by  the  aforesaid  parties  to  this  action,  and  comprises  all 
the  real  estate  of  which  the  said  G.  B.  died  seized  in  fee 
simple. 

That  the  plaintiff  is  desirous  and  prays  judgment  that 
a  partition    or  division    should   be    made  of  the    several 
parcels  of  land  and  real  estate  among  the  several  parties 
seized  of  or  entitled  thereto,  according  to  their  respective 
rights,  estates  and  interests  therein  ;  or,  in  case   the  said 
several  parcels  of  land   cannot   be    divided    among   the 
owners    thereof  without   material    injury   to   the    parties 
interested    therein,   then   that    such  part  or  portions   as 
cannot  be  so  divided  may  be  sold  and  the  proceeds  thereof 
divided  among  such  parties  according  to  their  respective 
rights  and  interests  ;  and  that  the  dower  interest   of  the 
said  C.  B.  may  be  apportioned  upon  specific  pieces  of  the 
said  premises  ;  or,  in  case  it  cannot  be  apportioned  upon 
specific  portiors  of  the  said  premises,  then  that  a  portion 
of  the   said  sum   for    which    the  said  premises    shall  be 
sold  be  set  apart,  the  annual  income  of  which  to  go  to  the 
said  widow  ;  provided,  however,  that  the  said  widow  shall 
not  elect  to  receive  a  gross  sum  in  lieu  and   instead   of 
the  income    of  the   amount  to  be  set  apart  as  aforesaid  ; 
but  in  case  the  said  C.  B.  shall  elect  to  receive  a   gross 
sum  for   her   dower   interest,  that    this  court  so  adjudge 
and  decree  ;  and  for   such   other  and  further  relief  and 
judgment  in  the  premises  as   the   nature  of  this  case  may 
require  and  be  agreeable  to  equity,  and  that  the  plaintiffs 
may  be  allowed   their   costs   and  disbursements   in    this 
action. 

L.  H.,  Plffs  Att'y,  New  York. 


FORMS.  527 


No.  10. 

G-eneral  Answer  of  Infant  or  Lunatic. 

IT  it  I e.^ 

The  defendant  ,  an  infant  [<?r,  lunatic],  answering 

by  his  guardian  ad  litem  {or,  committee],  says,  that  he  is 
a  stranger  to  all  and  singular  the  matters  and  things 
in  the  complaint  in  this  action  set  forth,  and  that  he  is  an 
infant  under  the  age  of  twenty-one  years,  \or,  that  he  is  a 
lunatic,  etc.]  and  claims  such  interest  in  the  premises  as 
he  is  entitled  to,  and  he  submits  his  rights  and  interests 
in  the  matter  in  question  to  the  protection  of  the  court. 


No.  11. 

Answer  Denying  Complaint  and  Alleging 
Ownership. 

ITitle?^ 

The  defendant  ,  appearing  in    this   action 

by  ,  his  attorney,  makes  answer,  and  complains 

as  follows  : 

First.  He  denies  the  same,  and  each  and  every  alle- 
gation therein  contained. 

Second.  The  said  defendant  further  alleges,  that  he 
is  the  owner  in  fee  and  possessed  of  the  premises  set 
forth  in  the  plaintiff's  complaint,  and  the  whole  thereof. 

Wherefore,  this  defendant  demands  judgment  that  the 
plaintiff's  complaint  be  dismissed,  and  that  he  have  his 
costs  of  this  action,  with  such  other  further  or  different 
relief  as  may  be  just  and  in  accordance  with  equity. 


528  THE    LAW   OF    PARTITION. 


No.  12. 

Penuenoy  of  Action  for  Dissolution  of 
Partnership. 

\Title?^ 

The  defendant  for  his  answer  to  the  plaintiff's  complaint 
alleges,  that  the  premises  of  which  the  plaintiff  prays  a 
partition,  being  the  same  which  were  described  in  his 
complaint,  were  purchased  by  the  plaintiff  and  this 
defendant  as  partners,  with  partnership  funds,  and  for 
partnership  purposes  in  carrying  on  and  conducting  the 
business  of  \state  luhat]  as  such  partners,  and  the  same  is 
still  so  used  for  said  partnership  purposes. 

This  defendant  further  alleges,  that  prior  to  the  com- 
mencement of  this  action,  to  wit,  on  the  day  of  , 
18  ,  this  defendant  commenced  an  action  in  the 
court  against  the  plaintiff  for  a  dissolution  of  said  partner- 
ship and  an  accounting,  and  which  said  action  and 
accounting  involved  the  real  property  described  in  the 
complaint,  and  which  said  action  is  still  pending  and 
undetermined. 

Wherefore,  this  defendant  prays  judgment  dismissing 
the  plaintiff's  complaint,  together  with  his  costs  of  this 
action. 


No.  13. 

Answer  "wherein  the  Defendant  concnrs  in 
the  Plaintiffs  Prayer  for  Relief 

[Title.-] 

The  defendant  answers  to  the  plaintiff's  com- 

plaint in  this  action,  and  alleges  : 

That  he  admits  that  he  is  a  tenant  in  common  with 
the  plaintiff,  and  is  the  owner  of  the  undivided  part 

of  said  property  in  fee. 

Wherefore,  this  defendant  concurring  in  the  prayer  for 
partition,  asks  judgment,  etc. 


FORMS.  529 

No.  14. 
Affidavit  to  Move  for  Reference. 

S^Titlc  0/ cause. 'I 

State  of  ,  County  of  ,  ss  : 

A.  B.,  of  the  city  of  ,  in  the  county  of  , 

State  of  ,  being  duly  sworn,  says,  that  he  is  the 

attorney  for  the  plaintiff  in  this  action  ;  that  this  action 
has  been  brought  to  obtain  partition  or  sale  and  division 
of  the  proceeds  of  the  real  property  described  in  the  com- 
plaint among  the  owners  thereof,  according  to  their 
respective  interests  therein  ;  that  said  action  was  com- 
menced by  the  service  of  the  summons,  with  notice  of 
object  thereto  attached  [(5>r,  with  a  copy  of  the  complaint] 
upon  all  the  defendants  herein  ;  that  more  than  twenty 
days  have  elapsed  since  such  service  became  complete,  as. 
appears  by  the  proof  of  service  hereto  annexed,  and  that 
none  of  the  defendants  have  appeared  or  answered  [or,  if 
any  defendant  has  appeared,  so  state]. 

In  ease  of  infancy  or  absentees.']  Deponent  further- 
says,  that  the  defendant,  C.  D.,  is  an  infant  [under  c;;- over 
the  age  of  fourteen  years]  for  whom  M.  N.,  an  attorney 
and  counselor  of  this  court,  has  been  duly  appointed 
guardian  ad  litem,  and  has  appeared  in  said  action  and 
put  in  the  usual  general  answer  in  behalf  of  said  infant 
defendant. 

In  case  of  wtknotvn  owners.]  Deponent  further  says,, 
that  the  owners  of  one  part  of  said  property  are 

unknown  to  the  plaintiff. 

In  case  of  absentees i]  Deponent  further  says,  that  the 
defendant,  J.  T.,  is  an  absentee  ;  that  service  of  the  sum- 
mons in  this  action  was  made  upon  him  by  publication, 
pursuant  to  an  order  of  the  Hon.  [judge,  or,  justice] 

of  court,  which  order  is  duly  filed   in   the    county 

clerk's  office  of  county,  being  the  county  in  which 

the  land  set  forth  in  the  complaint  is  situated.     Proof  of 
34 


53 O  THE    LAW    OF    PARTITION. 

service  upon  the   said   absent   defendant  pursuant   to  the 
order  aforesaid  is  hereto  annexed. 

Deponent  further  says,  that  with  the  exception  of  the 
said  infant  defendant,  C.  D.,  all  of  the  defendants  in  this 
action  are  in  default.     [Or  if  they  have  appeared  and  not 
answered^  so  state.] 
\Jurat\ 

No.  15. 

Notice  of  Motion  for  Heference. 

New  York  Code  Civ.  Pro.  §  1545. 
[  Title  of  canseP\ 

Sirs  :  Take  notice,  that  upon  the  summons  and  com- 
plaint in  this  action,  with  proof  of  due  service  thereof  {or, 
of  said  summons  and  notice  of  object  of  action]  upon  the 
defendants,  and  upon  the  affidavit,  with  a  copy  of  which 
you  are  herewith  served,  the  same  being  hereto  annexed, 
and  upon  all  the  papers  and  proceedings  in  this  action,  a 
motion  will  be  made  at  the  next  special  term  of  this  court, 
to  be  held  at  the  court-house,  in  the  city  ,  in  the 

county  of  ,  on  the  day  of  ,  18     ,  at 

ten  o'clock  in  the  forenoon,  or  as  soon  thereafter  as  coun- 
sel can  be  heard,  for  an  order  of  this  court  appointing  a 
referee  to  ascertain  the  rights,  shares  and  interests  of  the 
several  parties  in  the  property  sought  to  be  partitioned  in 
this  action,  and  an  abstract  of  the  conveyances  by  which 
the  same  are  held,  and  to  take  proof  of  the  plaintiff's  title 
and  interest  in  said  premises  and  of  the  several  matters 
set  forth  in  the  complaint,  and  to  report  whether  said 
property,  or  any  part  thereof,  is  so  circumstanced  that  a 
partition  thereof  cannot  be  made  without  great  prejudice 
to  the  owners,  and  for  such  other  and  further  relief  as  may 

be  proper. 

K.  M.,  Plaintiffs  Attorney. 

[Office  address.l 

Dated  ,18     . 

To  W.  A.,  Attorney  for  the  Defendant,  C.  D. 

K.  L.,  Attorney  for  the  Defendant,  A.  F. 


FORMS.  531 

No.  16. 

Order  of  Reference. 

New  York  Code  Civ.  Pro.  §  1545. 
At  a  special  term  of  the  supreme  court,  etc. 

[  Title  of  cause?[ 

Upon  filing  due  proof  of  the  personal  service  of  the 
summons  and  the  notice  of  object  of  action  [and  com- 
plaint] in  this  action  upon  the  defendants,  and  of  filing  of 
notice  of  pendency  of  the  action  in  the  county  clerk's 

office  more  than  twenty  days  since,  and  on  reading  and  fil- 
ing the  affidavit  of  A.  B.,  attorney  for  the  plaintiff,  dated 
the  day  of  ,  18       ,  and   sworn  to 

before  ,  notary  public,  and  it  appearing  by  said  affi- 

davit that  the  defendants  are  all  in  default,  none  having 
appeared,  answered  or  demurred,  and  that  none  of  the 
defendants  are  infants  or  absentees  [or  if  any  are  infants 
or  absentees  or  have  appeared,  state  that  fact\ 

Now,  on  motion  of  K.  M.,  of  counsel  for  the  plaintiff, 
there  being  no  opposition. 

It  is  Ordered,  That  ,  of  ,  a  coun- 

selor of  this  court,  be  and  he  is  hereby  appointed  referee 
in  the  above  entitled  action  to  ascertain  and  report  the 
rights,  shares  and  interests  of  the  several  parties  to  this 
action  in  the  property  described  in  the  complaint  and  of 
which  partition  is  sought,  and  an  abstract  of  the  convey- 
ances by  which  the  same  are  held,  and  to  take  proof  of 
the  plaintiff's  title  and  interest  in  said  premises  and  of  the 
several  matters  set  forth  in  the  complaint,  and  to  report 
whether  the  property,  or  any  part  thereof,  is  so  circum- 
stanced that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners  ;  and,  if  he  arrives  at  the 
conclusion  that  a  sale  of  said  property,  or  any  part  thereof, 
is  necessary,  then  that  he  ascertain  whether  there  is  any 
creditor,  not  a  party,  who  has  a  lien  upon  the  undivided 
share  or  interest  of  any  party. 


THE    LAW    OF    PARTITION. 


No.  17. 

Order  of  reference  preliminary  to  Judgment 
for  Partition. 

At  a  special  terra,  etc. 

[Title  of  the  cause.] 

On  reading-  and  filing  due  proof  by  the  affidavit  of  M. 
N.  that  the  summons  [and  complaint]  herein   has  been 
duly  personally  served  within  this  State  on  all  the  defend- 
ants [except  the  unknown  owner  and  the  defendant  U.  V., 
a  non-resident,  on  each  of  whom  it  has  been  duly  served 
by  publication],  and  that  none  of  the  defendants  are  in- 
fants [except  the  defendant  W.  X.],  and  that  none  of  them 
have  demurred  or  put  in  any   answer  controverting   any 
material  allegation  of  the  complaint,  now,  on  motion  of 
M.  N.,  for  the  plaintiff,  and  on  proof  of  due  notice  of  this 
motion  to  the  defendants  who  have  appeared,    and  after 
hearing  O.  P.  \or,  no  one  appearing]  in  opposition : 

Ordered,  That  it  be  referred  to  R.  F.,  Esq.,  of  , 

counselor  at  law,  to  take  proof  of  the  plaintiff's  title  and 
interest  in  the  premises  mentioned  in  the  complaint,  and 
of  the  several  matters  set  forth  in  said  complaint,  and  to 
ascertain  and  report  what  share  or  part  of  the  said  prem- 
ises belongs  to  each  of  the  parties  to  this  action,  so  far 
as  the  same  can  be  ascertained,  and  the  nature  and  ex- 
tent of  their  respective  rights  and  interests  therein,  and 
an   abstract    of  the  conveyances  by  which  the  same  are 

held. 

[And,  if  a  sale  is  deemed  necessary,  add :]  And  said 
referee  is  further  directed  to  inquire  and  report  whether 
the  whole  of  said  premises,  or  any  lot  or  separate  parcel 
thereof,  are  so  circumstanced  that  an  actual  partition 
cannot  be  made;  and  if  he  arrives  at  the  conclusion  that 


FORMS.  533 

a  sale  of  the  whole  premises,  or  of  any  lot  or  separate 
parcel  thereof,  will  be  necessary,  then  to  specify  the  same 
in  his  report,  together  with  the  reasons  which  render  a 
sale  necessary  ;  and  in  such  a  case,  that  he  also  ascertain 
and  report  whether  any  creditor  not  a  party  to  this  action 
has  a  specific  lien  by  mortgage,  devise,  or  otherwise,  upon 
the  undivided  share  or  interest  of  any  of  the  parties  in 
that  portion  of  the  premises  which  it  is  necessary  to  sell; 
and  if  he  finds  that  there  is  no  such  specific  lien  in  favor 
of  any  person  not  a  party  to  the  action,  that  he  further 
inquire  and  report  whether  the  undivided  share  or  interest 
of  any  of  the  parties  in  the  premises  is  subject  to  any 
general  lien  or  incumbrance,  by  judgment  or  decree ; 
and  that  he  ascertain  and  report  the  amount  due  to  any 
party  to  the  action,  who  has  either  a  general  or  specific 
lien  on  the  premises  to  be  sold,  or  any  part  thereof,  and 
the  amount  due  to  any  creditor,  not  a  party,  who  has  a 
general  lien  on  an  undivided  share  or  interest  therein,  by 
judgment  or  decree,  and  who  shall  appear  and  establish 
his  claim  on  such  reference.  And  said  referee,  if  request- 
ed by  the  parties,  or  any  one  of  them,  who  appear  before 
him  on  such  reference,  shall  also  ascertain  and  report  the 
amount  due  any  creditor  not  a  party  to  the  action,  which 
is  either  a  specific  or  general  lien  or  incumbrance  upon 
all  the  shares  or  interests  of  the  parties  in  the  premises 
to  be  sold,  and  which  would  remain  as  an  incumbrance 
thereon  in  the  hands  of  the  purchaser. 

[  Where  two  or  more  owners  wish  their  shares  set  off  in 
common,  add  :'\  And  said  referee  is  further  directed  to  in- 
quire and  ascertain  whether  the  premises  are  so  situated 
that  the  shares  of  A.  B.  and  C.  D.  can  be  setoff  to  them  in 
common,  without  any  partition  or  allotment  as  between 
them,  and  without  injury  to  the  interests  of  any  of  the 
parties,  and  that  he  report  the  facts,  with  his  opinion 
thereon. 


534  THE    LAW    OF    PARTITION. 

No.  18. 
Oath,  of  Referee. 

New  York  Code  Civ.  Pro.  §  1016. 

[  Title  of  cause. ^ 

I,  ,    the  referee  appointed  by  order  of 

the  court  in  the  above  entitled  action,  do  solemnly 
swear  that  I  will  faithfully  and  fairly  try  the  issues  \or, 
determine  the  questions  referred  to  me]  in  the  above 
entitled  action,  and  will  make  a  just  and  true  report, 
according  to  the  best  of  my  understanding. 

,  Referee. 

{Jurat?^ 


No.  19. 

Referee's  Report  as  to  Title,  etc. 

New  York  Code  Civ.  Pro.  §  1545. 

[  Title  of  cause.] 

I,  M.  R.,  the  referee  appointed  in  this  action  by  order 
of  the  court,  made  and  entered  herein  on  the  day 

of  ,  18     ,  respectfully  report  : 

That  having  been  attended  by  counsel  for  the  several 
parties,  who  have  appeared  [and  by  E.  F.  [attorney  for 
the]  guardian  ad  litem  of  the  infant  defendants,  S.  H.  and 
E.  H.]  I  proceeded  to  a  hearing  of  the  matters  and  things 
so  referred  to  me. 

That  I  have  ascertained  the  rights,  shares  and  in- 
terests of  the  several  parties  in  the  property  sought  to  be 
partitioned  in  this  action  to  be  as  follows  : 

The  plaintiff  and  the  defendants,  A.  H.  and  E.  C.  are 
each  of  them  seized  in  fee  simple  absolute,  and  are  in 
possession  of  the  equal,  undivided  one-fourth  part  of  the 


FORMS.  535 

said  property,  and  the  defendants,  S.  H.  and  E.  H.,  are 
each  of  them  seized  in  fee  simple  absolute  and  are  in 
possession  of  the  one  equal  undivided  eighth  part  thereof, 
each  of  the  said  portions  being  subject  to  the  right  of 
dower  of  the  defendant,  C.  H.,  widow  of  L.  H.,  and  the 
interest  of  the  defendant,  A.  H.,  being  subject  to  the  in- 
choate right  of  dower  therein  of  his  wife,  the  defendant, 
M.  H. 

That  the  defendant,  J.  F.,  is  the  owner  of  a  mortgage 
upon    the    said    property    [or,  upon    the    interest    of    the 
defendant,  A.  H.,  in  said  property],  executed  by 
to  ,  dated  ,  i8     ,  and  recorded  in 

county  clerk's  office,  on  the  day  of  i8     , 

in  book  of  mortgages  No.  ,  at  page  ,  and  upon 
which  is  [due  and]  unpaid  the  sum  of  dollars. 

That  the  defendant,  C.  H.,  has  a  dower  interest  in 
said  property,  as  the  widow  of  L.  H.,  which  has  never 
been  admeasured  ;  and  the  defendant,  M.  H.,  has  an 
inchoate  right  of  dower  in  the  interest  of  her  husband,  the 
defendant,  A.  H. 

And  I  further  report,  that  the  premises  are  so  circum- 
stanced that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners  thereof,  for  the  following 
reasons  [/lere  state  reasons\,  and  I  further  report,  that  I 
have  caused  a  notice  to  be  published,  as  required  by  law, 
once  in  each  week  for  six  successive  weeks,  in  the  news- 
paper printed  at  Albany,  in  which  legal  notices  are  re- 
quired to  be  published,  and  also  in  a  newspaper  published 
in  the  county  of  ,  in  which  said  property  is  situ- 

ated, requiring  each  person  not  a  party  to  the  action  who, 
at  the  date  of  the  order  of  my  appointment,  had  a  lien 
upon  any  undivided  share  or  interest  in  the  property,  to 
appear  before  the  undersigned  referee,  at  ,  on 

or  before  the  day  of  ,  to  prove  his 

lien,  and  the  true  amount  due,  or  to  become  due,  to  him 
by  reason  thereof  And  I  report,  that  no  creditor  not  a 
party  has  appeared  before  me  pursuant  to  such  notice,  or 
made  proof  of  any  lien  as  required  by  said  notice. 


53^  THE    LAW   OF    PARTITION. 

And  I  further  report,  that  the  following  is  an  abstract 
of  the  conveyances  by  which  the  title  to  the  said  premises 
is  held,  to  wit : 


J.  M.  and  F.  M.,  his  wife,  ] 

to  [ 

L.  H.  j 

Warranty  deed  dated  ,  i8     .     Considera- 

tion dollars.      Duly     acknowledged     and 

recorded  ,  i8     ,  in  the  clerk's  office  of  county, 

in  book  No.         of  deeds,  at  page 

L.  H.,  the  father  of  the  plaintiff,  died  intestate,  on  or 
about  ,  i8     ,  and  seized  in  fee  of  the  property 

described  in  the  above  mentioned  deed  and  in  the  com- 
plaint, leaving  the  plaintiff  and  the  defendants  \jtaining 
Ihejjt]  his  sole  heirs  at  law,  and  his  widow,  the  defendant 
C.  H.,  him  surviving. 

All  of  which  is  respectfully  submitted.    • 

Dated  ,  i8     . 

M.  H.,  Referee. 


No.  20. 

Heport— That  a  Partition  can  "be  made. 

[  Title  of  act  ion. 1 

To  the  supreme  court  of  the  State  of  New  York  : 

In  pursuance  of  an    order    of  this    court    made  in  the 
above  action,  on  the  day  of  ,  i8     ,  by 

which  it  was  referred  to  me,  to  take  proof  of  the  plaintiffs 
title  and  interest  in  and  to  the  premises  in  the  plaintiff's 
complaint  mentioned,  and  of  the  several  matters  set  forth 
in  the  said  complaint,  and  to  ascertain  and  report  what 
share  or  part  of  the  said  premises  belongs  to  each  of  the 
parties  to  this  action,  so  far  as  the  same  could  be  ascer- 
tained, and  the    nature    and   extent   of  their   respective 


FORMS.  537 

rights  therein,  and  an  abstract  of  the  conveyances  by 
which  the  same  are  held  ;  and  also  to  inquire  and  report 
whether  the  said  premises,  or  any  lot  or  separate  parcel 
thereof,  are  so  circumstanced  that  an  actual  partition 
thereof  cannot  be  made,*  I,  the  subscriber,  referee,  as 
aforesaid,  do  report : 

That,  having  been  attended  by  the  attorneys  of  the 
several  parties  who  appeared  in  this  action,  I  proceeded  to 
a  hearing  of  the  matters  so  referred. 

I  further  report,  that  on  such  hearing  I  took  proof  of 
the  facts  stated  in  the  complaint,  and  find  that  the  mate- 
rial facts  set  forth  are  true. 

And  I  further  certify  and  report,  that  the  following  is 
an  abstract  of  the  conveyances,  by  which  the  premises 
described  in  the  complaint  are  held,  that  is  to  say : 


J.  B.,  and  A.,  his  wife, 

to 

L.  M. 


Warranty  deed,  dated  ,  i8     .     Considera- 

tion dollars.     Duly  acknowledged  and 

recorded  ,  i8     ,  in  the  clerk's  office  of  county, 

in  book  W.  W.  of  deeds,  page  ,etc.,  which  contains  a 

description  of  the  same  premises  set  forth  in  the  complaint 
in  this  action. 

L.  M.,  the  father  of  the  plaintiff,  died  on  or  about 
the  day  of  ,  i8     ,  and  by  his  will  gave 

a  life  estate  in  all  his  real  estate  to  his  wife,  M.,  the 
mother  of  the  said  A.  M.,  and  at  her  death  to  be  equally 
divided  among  all  the  children  of  the  said  testator,  share 
and  share  alike.  Said  last  will  and  testament  was  proved 
and  recorded  as  a  will  of  real  estate,  on  the  day 

of  ,  i8     ,  in  the  office  of  the  surrogate  of  the 

county  of 

The  said  M..  wife  of  the  said  testator,  died  on  or 
about    the  day  of  ,  i8     ,  leaving    her 

surviving  as   the    children    and  heirs   at    law  of  the  said 


538  THE    LAW    OF    PARTITION. 

testator  the  following,  to  wit  :  A.  and  B.,  sons  of  L.  M., 
deceased,  and  N.,  wife  of  O.  M.,  daughter  of  the  said  L. 
and  M.,  and  C.  and  D.,  sons  of  E.,  deceased,  and  grand- 
children of  the  said  L.  M.  and  S.,  widow  of  the  said  E., 
deceased. 

The  legal  estate  and  interest  of  the  parties  in  the 
premises  are  as  follows  : 

The  plaintiff  A.  and  the  defendant  B.  are  each  entitled 
to  one  undivided  fourth  part  thereof  in  right  of  the  said  C. 

The  defendant  S.,  as  widow  of  the  said  E.,  deceased, 
is  entitled  4;o  a  dower  right  in  one  undivided  fourth  there- 
of, and  the  said  C.  and  D.  are  each  entitled  to  one  undi- 
vided eighth  part,  subject,  however,  to  the  dower  of  S., 
their  said  mother. 

The  estate  is  in  the  parties  in  fee,  subject  to  the 
marital  and  dower  interests  as  appear  above. 

I  further  report,  that  the  premises  described  in  the 
complaint  are  so  circumstanced  that  in  my  opinion  a 
partition  thereof  can  be  made  without  material  injury  to 
the  rights  or  interests  of  the  several  owners  thereof ;  and 
that  a  sale  of  such  premises  would  not  be  more  advantage- 
ous to  such  owners  than  a  partition  thereof. 

All  which  is  respectfully  submitted. 

Dated  ,18     . 

A.  B.,  Sole  Referee. 


No.  21. 
Heport— That  Sale  is  necessary  in  Partition. 

[As  in  the  last  form  to  the  *,  theiil  And  if  the  said 
referee  should  arrive  at  the  conclusion  that  a  sale  of  the 
whole  of  the  said  premises,  or  any  lot  or  separate  parcel 
thereof,  will  be  necessary,  that  he  specify  the  same  in  his 
report,  together  with  the  reasons  rendering  a  sale  neces- 
sary ;  and  in  such  a  case  that  he  also  ascertain  and  report 
whether  any   person    not  a  party  to   this   action   has  a 


FORMS.  539 

specific  lien  on  the  undivided  share  or  interest  of  any  of 
the  parties  in  that  portion  of  the  premises  which  it  is  nec- 
essary to  sell  ;  and  that  he  further  inquire  and  report 
whether  the  undivided  share  or  interest  of  any  of  the 
parties  in  the  premises  is  subject  to  any  general  lien  or 
incumbrance  by  judgment  or  decree  ;  and  that  he  ascer- 
tain and  report  the  amount  due  to  any  person  which  is 
either  a  specific  or  general  lien  or  incumbrance  upon  all 
or  any  of  the  shares  or  interests  of  the  parties  in  the 
premises  to  be  sold,  and  which  would  remain  as  an  en- 
cumbrance thereon  in  the  hands  of  the  purchaser.  I,  the 
subscriber,  referee,  as  aforesaid,  do  respectfully  report  : 

That,  having  been  attended  by  the  attorneys  for  the 
several  parties  who  appeared  in  the  action,  I  proceeded 
to  a  hearing  of  the  matters  so  referred,  after  having 
caused  a  notice  to  be  published  as  required  by  law,  for  all 
general  lien  creditors,  by  judgment,  decree  or  otherwise, 
on  the  undivided  share  or  interest  of  any  of  the  parties  in 
the  premises,  to  produce  to  me  proof  of  their  respective 
liens  and  incumbrances,  together  with  satisfactory  evi- 
dence of  the  amount  due  thereon,  and  to  specify  the  nature 
of  such  incumbrances,  and  the  dates  thereof  respectively. 

I  further  report,  that  on  such  hearing,  I  took  proof  as 
to  the  facts  stated  in  the  complaint,  and  find  the  material 
facts  therein  set  forth  are  true. 

And  I  further  certify  and  report,  that  the  following  is 
an  abstract  of  the  conveyance  by  which  the  premises 
described  in  the  complaint  are  held,  that  is  to  say  : 

The  last  will  and  testament  of  W.  S.,  the  common 
source  of  title,  who  died  seized  and  possessed  of  the  prem- 
ises in  the  complaint  described. 

By  such  will  he  devised  unto  his  wife,  B.  S.,  since 
deceased,  all  the  rents,  issues  and  profits  and  income  of 
his  real  estate  during  her  natural  life,  and  after  her  death 
he  gave,  devised  and  bequeathed  the  same  to  his  four 
children,  E.  F.  G.,  wife  of  R.  M.,  and  H.,  each  one  fourth 
part  thereof,  to  have  and  to  hold  the  same  unto  his  said 
children  each  one-fourth  part  thereof,  and  to  their  rcspcc- 


540  THE    LAW    OF    PARTITION. 

tive  heirs  forever.     Will  dated  ,  i8     ,  proved  and 

recorded  in  the  county  surrogate's  office,  on  the 

day  of  ,  i8     .     That  in  ,  the  said  W.  S.  died, 

leaving  his  four  children  and  his  wife  him  surviving  ;  that 
in  ,  i8     ,  the  said  B.  S.,  widow  of  the  said  testator, 

departed  this  life;  that  F.  S.,one  of  the  children  of  the 
said  W.  S.,  has  also  departed  this  life,  leaving  him  sur- 
viving his  widow,  M.  S.  and  two  children,  to  wit  :  P.  S. 
and  R.  S. 

And  I  do  further  certify  and  report,  that  the  legal 
estate  and  interest  of  the  parties  in  the  premises  are  as 
follows  : 

The  plaintiff  E.  S.  is  entitled  to  one  undivided  fourth 
part. 

The  defendant  R.  M.,  and  G.  M.,  his  wife,  in  right  of 
the  said  G.,  are  entitled  to  one  undivided  fourth  part. 

The  defendant  H.  is  entitled  to  one  undivided  fourth 
part. 

The  defendant  M.  S.,  widow  of  the  said  F.  S.,  deceased, 
is  entitled  to  dower  in  the  one  fourth  part  of  which  he 
died  seized. 

The  defendant  P.  S.  and  R.  S.,  children  of  the  said  F. 
S.,  deceased,  are  each  entitled  to  one  eighth  part,  subject 
to  the  dower  of  the  said  M.  S.,  their  mother. 

The  estate  is  in  the  parties  in  fee,  subject  to  the 
marital  interests  therein,  and  the  dower  interests  which 
appear  above. 

And  I  do  further  certify  and  report,  that  the  premises 
described  in  the  complaint  in  this  action  are  so  circum- 
stanced that,  in  my  opinion,  a  partition  thereof  cannot  be 
made  without  great  injury  and  prejudice  to  the  owners 
thereof.  The  premises  consist  of  three  city  lots,  and  to 
lessen  their  present  size  would  render  them  valueless. 
These  facts,  in  connection  with  the  number  of  the  owners 
and  persons  interested,  render  a  partition  difficult  and 
impracticable. 

I  do  further  certify  and  report,  that  I  have  caused  the 
necessary  searches  to  be  made,  and  I  find  two  creditors,  not 


FORMS. 


541 


a  party  to  this  action,  and  no  more,  have  any  specific  lien  | 
by  mortgage,  devise  or  otherwise,  upon  the  undivided ,' 
share  or  interest  of  any  of  the  parties  in  the  premises,  and  ' 
that  those  two  creditors  are  G.  B.,  of  the  city  of  ,  and 

S.  G.,  of  the  same  place,  as  follows  : 


E,  S.  and  wife 

to 

G.  B. 


18     ,    given    to 
dollars,  in  two 


Bond   and    mortgage,    dated 
secure  the  payment  of  the  sum  of 
years  from  the  date  thereof. 

Mortgage  recorded  in   the  office  of  the  clerk  of  the 
county  of  ,  on  the  day  of  ,18     .     That 

the  whole  of  said  mortgage,  with  interest  from  , 

18     ,  is  unpaid. 

Supreme  Court. 

S.  G. 

V. 

H.  G. 


Judgment  for  dollars,    obtained    and    docketed 

in  county,  ,18     ,  all  which  is  unpaid. 

That  there  is  no  other  general  lien  or  incumbrance  by 
judgment  or  decree  upon  the  undivided  share  or  interest 
of  either  of  the  parties  in  the  premises. 

And  I  further  report  that  no  creditor,  not  a  party  to 
this  action,  having  any  general  lien  on  any  undivided 
share  or  interest  in  the  premises,  by  judgment  of  decree, 
appeared  before  me  on  the  said  reference,  to  establish  his 
claim  in  pursuance  of  the  notice  published  by  mc,  except 
as  aforesaid. 

All  of  which  is  respectfully  submitted. 

Dated  ,  18     . 

A.  B.,  Referee. 


542  THE    LAW    OF    PARTITION, 

No.  22. 

Final  Judgment  for  Actual  Partition. 

At  a  special  term,  etc. 
[  Title  of  the  cause ^^ 

This  action  having  to  be  brought  on  to  be  heard  upon 
the  report  of  G.  H.,  I.  J.,  K.  L.,  commissioners  appointed 
by  an  order  of  this  court,  and  on  reading  and  fiHng  said 
report,  which  bears  date  the  day  of  ,  i8     ,  by 

which  it  appears  that  the  said  commissioners  have  made 
partition  of  the  premises  described  in  the  complaint  in  this 
action  between  the  parties,  according  to  their  respective 
rights  and  interests  therein,  as  the  same  have  been  ascer- 
tained, declared  and  determined  by  this  court,  and  by 
which  said  partition  the  said  commissioners  have  divided 
the  whole  of  said  premises  into  allotments  of  equal 

value,  and  have  set  off  in  severalty  to  the  said  W.  X.,  one 
of  the  said  allotments,  bounded  and  described  as  follows  : 
[description^  as  will  more  fully  appear  by  a  map  of  said 
partition  thereto  annexed  ;  and,  also,  by  which  partition 
the  said  commissioners  have  set  off  in  severalty  to  {^pro- 
ceeding in  like  manner  to  state  each  allotment']  ;  now,  on 
motion  of  M.  N.,  for  the  plaintiff, 

It  is  Ordered  and  adjudged,  That  the  said  report,  and 
all  things  therein  contained,  do  stand  ratified  and  con- 
firmed, and  that  the  partition  so  made  be  firm  and  effect- 
ual forever. 

And  it  is  further  Ordered  and  adjudged.  That  the  said 
[naming  the  parties']  do  each  execute,  under  their  hands 
seals,  and  acknowledge  and  deliver  to  the  other,  a  deed  of 
release  and  quit-claim  of  the  parcels  of  land  set  off  to  each 
in  severalty  as  aforesaid. 

*And  it  is  further  Ordered  and  adjudged,  That  the 
said  pay  to  the  said  the  sum  of  dollars, 

being  the  one  part  of  the  costs  and  charges  of  the 

proceedings  in  this  action  ;  and  that  the  said  have 

execution  therefor. 


FORMS.  54- 


No.  23. 

The  Same  as  No.  22 ;  where  Compensation 
is  to  be  made  for  Equality. 

[^Insert  in  preceding  form,  at  the  *] 

And  it  appearing  from  the  said  report  that  the  share 
of  W.  X.  is  worth  more  in  proportion  than  the  respective 
shares  allotted  to  the  other  parties,  it  is  further  adjudged 
that  the  said  W.  X.  make  compensation  for  equality  of 
partition  to  the  other  parties  entitled  to  share  in  the  land 
{or,  its  proceeds],  and  pay  to  each  of  them  therefor, 
dollars,  together  with  dollars  his  share  of  the  costs 

and  charges  of  this  action  hereby  taxed.  dollars,  said 

share  being  one  [fourth]  part  of  said  costs  and  charges, 
with  the  additional  ratable  increase  ;  and  that  each  of 
the  said  other  parties  have  execution  for  the  sum  so 
adjudged  against  said  W.  X.  ;  and  that  the  same  is 
hereby  declared  to  be  a  lien  upon  the  share  so  allotted  to 
said  W.  X. 


No.  24. 
Interlocntory  Judgment  in  Partition  Suit. 

New  York  Code  Civ.  Pro.  §  1546. 

At  a  term  of  the  court,  held  at  , 

on  the  day  of  ,  18     . 

Present,  Hon.  A.  O.,  Judge  \pr.  Justice]. 
[  Title  of  cause '.\ 

Upon  filing  the  report,  dated  ,18     ,  of  M.  R., 

duly  appointed  as  referee  in  the  above  entitled  action,  by 
order  of  the  court,  made  and  entered  on  the  day 

of  ,  18     ,  and  it  appearing  that  due  notice  of  this 

application    has    been    given   to   the   parties   who  have 


544  THE    LAW   OF   PARTITION, 

appeared  herein,  and  to  E.  F.,  the  [attorney  for  the] 
guardian  ad  litem  of  the  infant  defendants,  S.  H.  and  E. 
H.,  who  has  appeared  herein,  and  put  in  the  usual  general 
answer  for  said  infants,  and  on  motion  of  ,  for  the 

plaintiff,  after  hearing  M.  J.,  for  the  defendant,  J.  P., 
and  [  for]  the  said  guardian  ad  litem  [and  the 

court  being  satisfied  that  the  interests  of  the  said  infant 
plaintiff  will  be  promoted  thereby].* 

It  is  hereby  Ordered  and  adjudged,  That  partition  be 
made  of  the  property  mentioned  and  described  in  the 
complaint  herein  [except  the  portion  hereafter  directed 
to  be  sold],  to  wit:  [insert  description  of  property,']  be- 
tween the  parties  entitled  thereto,  according  to  their 
respective  rights,  shares  and  interests  in  said  property, 
which  said  rights,  shares  and  interests  are  as  follows,  so 
far  as  the  same  have  been  ascertained,  to  wit  {here  set 
forth  the  interests  of  the  parties  as  they  appear  by  the 
Report  Form  No.  ip,]  and  that  T.  R.,  F.  J.  and  I.  M., 
three  reputable  and  disinterested  freeholders,  be  and  they 
are  hereby  designated  as  commissioners  to  make  the  said 
partition. 

[And  it  appearing  to  the  court,  by  said  report,  that 
the  defendants,  A.  H.  and  E.  C,  desire  to  enjoy  their 
shares  in  common  with  each  other,  it  is  hereby  directed 
that  partition  be  so  made  as  to  set  off  to  said  A.  H.  and 
E.  C.  their  shares  of  the  property  partitioned,  without 
partition,  as  between  themselves,  to  be  held  by  them  in 
common.] 

And  if  the  said  commissioners  find  that  partition  can- 
not be  made  equal  between  the  parties,  according  to 
their  respective  rights,  without  prejudice  to  the  rights  and 
interests  of  some  of  them,  then  they  shall  report  the 
amount  of  compensation  to  be  made  by  the  parties 
respectively  for  equality  of  partition  ;  but  they  shall  not 
report  that  compensation  be  made  by  a  party  who  is 
unknown,  or  whose  name  is  unknown,  nor  by  an  infant, 
unless  it  appears  that  he  has  personal  property  sufficient 
to  pay  it,  and  that  his  interests  will  be  promoted  thereby. 


FORMS.  545 

And  it  is  further  directed  that  all  the  parties  to  this 
action  shall  produce  to  and  leave  with  the  said  commis- 
sioners, for  such  time  as  the  commissioners  shall  deem 
reasonable,  all  deeds,  writings,  surveys  or  maps  relating  to 
the  premises,  or  any  part  thereof,  f 

[Or  zvhere  sale  of  the  whole  p7'operty  is  nccessa?y,  as 
above  to  *,  and  from  thence  as  follows  .•] 

It  is  hereby  Ordered  and  adjudged,  That  the  respective 
rights,  shares  and  interests  of  the  parties  to  this  suit  in 
the  property  mentioned  and  described  in  the  complaint 
herein,  so  far  as  the  same  have  been  ascertained,  are  as 
follows,  to  wit  :  \]iere  set  fortJi  the  interests  of  the  parties 
as  they  appear  by  the  report  Form  No.  ip.] 

And  it  having  been  found  by  said  report  that  the  said 
property  is  so  circumstanced  that  a  partition  thereof  can- 
not be  made  without  great  prejudice  to  the  owners,  it  is. 
ordered  and  adjudged,  that  the  said  property  mentioned 
and  described  in  the  complaint  herein,  to  wit  :  [insert 
description  of  property,']  and  all  the  estate,  right,  title- 
and  interest  of  the  parties  to  the  suit  therein,  whether 
present  or  future,  vested  or  contingent,  of  dower,  courtesy- 
or  otherwise,  including  the  dower  interest  therein  of  the- 
defendant,  ,  and  the  rights    to  which   any   other 

person  might  hereafter  become  entitled  in  said  premises, 
be  sold  tt  at    public    auction,  in  the  county  of  ^ 

where  such  premises  are  situated,  by  and  under  the  direc- 
tion of  J.  R.,  who  is  hereby  appointed  as  referee  for  the 
purpose  of  making  such  sale. 

That  the  said  referee  give  [six]  weeks'  previous  notice 
of  the  time  and  place  of  such  sale  in  one  of  the  public 
newspapers  published  in  the  county  of  where  such 

premises  are  situated,  and  in  such  other  manner  as  is 
required  by  law  and  the  rules  and  practice  of  this  court. 

That  said  sale  may  be  upon  credit  for  a  time  not  ex- 
ceeding years,  and  for  an  amount  not  to  exceed 
the  one  part  of  the  purchase  money  of  said  premi- 
ses to  be  secured,  at  interest,  by  mortgage  [or  by  one  or 
more  mortgages]  to  the  parties  entitled  to  said  one 
35 


546  THE    LAW    OF    PARTITION. 

part  of  said  purchase  money  upon  the  premises 
sold,  and  also  by  the  [joint  and  several]  bond  or  bonds 
of  the  purchaser  or  purchasers  to  the  said  parties,  con- 
ditioned for  the  payment  of  said  one  part,  or  less, 
of  said  purchase  money  in  not  to  exceed  years 
from  the  date  of  such  sc.le  ^add  any  additional  security 
which  the  court  may  prescribe^  ;  and  that  the  plaintiff, 
or  any  of  the  parties  to  this  action,  may  become  the  pur- 
chaser or  purchasers  thereof  [and  that  said  referee  pay 
into  court  the  portion  arising  from  the  sale  of  the  share 
or  interest  of  the  [defendant],  A.  H.,  after  deducting  the 
portion  of  the  costs  and  expenses  for  which  it  is  liable]. 

And  it  is  further  ordered,  that  the  said  referee, 
immediately  after  completing  such  sale,  file  with  the 
clerk  of  this  court  his  report  thereof,  under  oath,  contain- 
ing a  description  of  each  parcel  sold,  the  name  of  the 
purchaser  thereof,  and  the  price  at  which  it  was  sold. 

\^0r  when  a  sale  of  a  part  of  the  premises  is  necessary, 
as  above  to  t,  and  from  thence  as  follows  .•]  And  it 
having  been  found  by  said  report  that  the  parcel  of  said 
property  described  as  follows  [describe  the  samel,  is  so 
circumstanced  that  a  partition  thereof  cannot  be  made 
without  great  prejudice  to  the  owners,  it  is  hereby 
directed  that  the  said  premises  last  above  described  be 
sold,  [etc.,  as  above  from  ft  to  the  end\ 


No.  25. 

Interlocutory    Judgment    where    Partial 
Partition  is  Adjudged. 

New  York  Code  Civ.  Pro.  §  1517. 

As  in  Form  No.  2^  to  *,  and  from  thcJice  as  follows  : 
And  the  right,  share  and  interest  of  the  defendant, 
C  H., having  been  ascertained  and  determined  as  follows: 
\_state  same,  as  it  appears  by  the  report^  and  the  rights, 


FORMS.  547 

share  and  interests  of  the  other  parties  as  between  them- 
selves remaining  unascertained  and  undetermined  : 

It  is  hereby  Ordered  and  adjudged,  That  a  partition  be 
made  as  between  the  said  C.  H.,  and  the  other  parties  to 
this  action,  and  that  F.  R.,  F.  J.,  and  I.  M.,  three  reput- 
able and  disinterested  freeholders,  be  and  they  are  hereby 
designated  as  commissioners  to  make  the  said  partition. 

\^Add  same  provisions  for  compensation  for  equality  of 
partition  ajid  for  production  of  deeds,  etc.,  as  in  Form  No. 
2^,  and  continue  as  follows  :] 

And  it  is  further  directed,  that  this  action  be  severed, 
and  that  upon  the  coming  in  of  the  report  of  said  com- 
missioners that  final  judgment  be  rendered,  with  respect 
to  the  portion  of  the  property  set  apart  to  the  said  C.  H., 
leaving  the  action  to  proceed  as  against  the  other 
parties,   with  respect  to   the  remainder  of  the  property. 

\^A  dd  any  further  provisions  that  may  be  necessary  to 
carry  out  the  partial  partition^ 


No.  26. 
Oath  of  Commissioners. 

New  York  Code  Civ.  Pro.  g  1550. 

[  Title  of  cause.] 

We,  the   commissioners,    appointed 

by  an  interlocutory  judgment  made  and  entered  herein, 
on  the  day  of  ,    18     ,    to   make  partition 

of  the  property  described  in  said  judgment,  do  severally 
swear,  that  we  will  faithfully,  honestly  and  impartially 
discharge  the  trust  reposed  in  us  as  such  commissioners. 

IJtirat.]  [Signatures.] 


548  THE    LAW    OF    PARTITION, 

No.  27. 
Report  of  Commissioners  making  Partition. 

New  York  Code  Civ.  Pro.  §  1554. 

[  Title  of  cause ^^ 

To  the  supreme  court  of  the  State  of  New  York  \or 
name  other  eoitrt] : 

In  pursuance  of  an  interlocutory  judgment  of  this 
court,  made  in  the  above  entitled  action,  and  entered  in 
the  county  clerk's  office,  on  the        day  of  , 

18  ,  we,  the  undersigned  commissioners  thereby 
appointed  and  designated  to  make  partition  of  the  premi- 
ses described  in  said  judgment,  among  the  parties 
entitled  thereto  according  to  their  respective  estates  and 
interests  therein,  do  hereby  report  : 

That  having  been  first  duly  sworn  ;  and  having 
severally  taken  and  subscribed  the  oath  required  by  law, 
that  we  would  faithfully,  honestly  and  impartially  dis- 
charge the  trust  reposed  in  us,  which  said  oaths  were 
filed  with  the  clerk  of  county  before  we  entered 

upon  the  discharge  of  our  duties,  we  have  carefully  ex- 
amined the  premises  described  in  said  judgment  *  and 
caused  them  to  be  surveyed,  and  have  made  partition 
thereof  between  the  said  parties  f  according  to  their 
respective  rights  and  interests  therein,  as  the  same  have 
been  ascertained,  declared  and  determined  by  the  said 
court,  in  and  by  said  judgment,  in  manner  following  : 

We  divided  the  whole  of  said  premises,  other  than  the 
portion  herein  set  off  to  the  defendant,  M.  F.,  as  -her 
dower  interest  therein,  into  allotments,  the  lots 

composing  which  are  designated  on  the  map  hereto  an- 
nexed by  the  letters  A,  B,  C,  etc.,  each  of  which  allot- 
ments is,  in  our  opinion,  of  equal  value,  and  that  being  in 
our  judgment  the  most  beneficial  division,  all  circum- 
stances considered,  that  could  be  made  of  such  premises  ; 


FORMS.  549 

and  that  we  have  set  off  in  severalty  to  the  said  [plaintiff] 
S.  G.,  all  those  certain  parcels  of  the  said  premises  desig- 
nated on  said  map  by  the  letter  A,  and  which  are  respect- 
ively bounded  as  follows  {insert  description'],  as  will 
more  fully  appear  by  reference  to  said  map. 

And  we  have  also  set  off  in  severalty  to  the  said 
[defendant]  J.  G.,  all  those  certain  pieces  or  parcels  of 
said  premises,  designated  on  the  said  map  by  the  letter 

B,  which  are  respectively  bounded  as  follows  \insert 
descriptions'],  as  will  also  more  fully  appear  by  reference 
to  said  map. 

And  we  have  set  off  to  the  defendants  A.  H.  and  E. 

C,  all  those  certain  pieces  or  parcels  of  said  premises 
designated  on  the  said  map  by  the  letter  C,  which  are 
respectively  bounded  as  follows  {insert  descriptions'],  as 
will  also  more  fully  appear  by  reference  to  said  map,  to 
be  held  by  them  in  common. 

And  we  further  report,  that  we  have  set  off  in  sever- 
alty to  the  defendant,  M.  F.,  as  her  dower-right  in  said 
property,  the  premises  described  as  follows  [describe 
thevi\  and  designated  on  said  map  by  the  letter  D,  and 
we  have  made  partition  of  the  said  lot  D  among  the 
parties  entitled  thereto  in  remainder,  as  follows  :  to  the 
plaintiff,  S.  G.,  the  lot  designated  on  said  map  by  the  let- 
ter E,  and  described  as  follows  {describe  it'],  and  to  the 
defendant,  J.  G.,  the  lot  designated  on  said  map  by  the 
letter  F,  and  described  as  follows  [describe  it],  to  be 
enjoyed  by  them  respectively  upon  the  determination  of 
said  dower  interest  by  the  death  of  the  said  M.  F. 

[And  we  have  set  off  in  severalty  to  the  defendant 
having  the  share  in  said  property,  who  is  unknown, 

the  parcels  of  said  property  marked  N  upon  said  map  and 
described  as  follows  :  [describe  same.] 

And  it  appearing  to  us  that  partition  cannot  be  made 
equal  between  the  parties,  according  to  their  respective 
rights,  without  prejudice  to  the  rights  and  interests  of 
some  of  them,  and  that  the  payments  hereinafter  named 
are  necessary  to  produce  such  equality,  wc  have  awarded 


550  THE    LAW    OF    PARTITION. 

compensation  to  be  made  between  the  parties  as  follows : 
the  plaintiff,  S.  G.  is  to  pay  the  defendant,  J.  G.,  the  sum 
of  dollars. 

And  we  further  certify  and  report,  that  the  items  of 
the  various  expenses  attending  the  execution  of  the  said 
commission,  including  our  fees  as  commissioners,  are  con- 
tained in  a  schedule  hereto  annexed,  marked  A,  and  form- 
ing part  of  this,  our  report  ;  and  that  we  have  caused  a 
map  to  be  made  thereof,  as  aforesaid,  showing  what  parts 
of  the  said  premises  have  been  allotted  to  the  respective 
parties,  which  map  forms  a  part  of  this,  our  report,  and  is 
hereto  annexed,  marked  B. 

In  witness,  whereof,  we,  the  said  commissioners,  have 
set    our   hands    to   this,    our   report,    this  day 

of  ,  i8     . 

In  presence  of 
\Acknowledgment  as  prescribed  by  the  law.] 
Schedule  A. 

For  services  as  commissioners,  at  five  dollars 
per  day  for  each,  ....     $00  00 

Cash  paid  for  services  as  surveyor,  o  00 

Cash  paid  for  two  surveyors'  assistants  and 
flag-bearer,  $2  each,        .  .  .        00  00 

$00  00 


No.  28. 

Report     of    Commissioners    that    sale    of 

Property,  or  of  som.e  part  thereof, 

is  necessary. 

New  York  Code  Civ.  Pro.  ^  1551. 

[Title  of  cause  !\ 

A  s  in  Form  No.  2j  to  *,  and  from  thence  as  follows  : 
And  that  it  appears  to  [a  majority  of]  us  that  the  par- 
tition thereof  [or,  of  the  lot,  or,  tract,  or,  portion]  thereof 


FORMS.  551 

described  as  follows  [describing  it"]  cannot  be  made  with- 
out great  prejudice  to  the  owners  for  the  following 
reasons,  to  wit:  [state  reasons^ 

In  witness  whereof,  we,  the  said,  etc.  \as  in  Form  No.  <?/.] 

[Signature  s.\ 

In  presence  of 
[A  cknowledgment  as  prescribed  by  the  law.^ 


No.  29. 

Final  Judgment  upon  Report  of  Commis- 
sioners, making  Actual  Partition. 

New  York  Code  Civ.  Pro.  ^  1557. 

At,  etc.  [as  in  Form  No.  2j\ 
[Title  of  cause ^ 

This  cause  having  been  brought  on  to  be  heard   upon 
the  report  of  ,  commissioners  appointed  therein, 

under  and  by  virtue  of  the  interlocutory  judgment  made 
and  entered  in  this  action,  and  upon  reading  and  filing 
said  report,  which  bears  date  the  day  of  , 

18  ,  and  proof  of  due  service  of  notice  of  application 
for  judgment  thereupon,  the  attorneys  for  all  parties  who 
have  appeared  herein,  and  upon  the  [attorney  for  the] 
guardian  ad  litem  of  the  infant  defendant  having  been 
made,  and  it  appearing  by  said  report  that  the  said  com- 
missioners have  made  partition  of  the  premises  described 
in  the  complaint  in  this  action,  between  the  parties  to 
this  action,  according  to  their  respective  rights  and  inter- 
ests therein,  as  the  same  have  been  ascertained,  declared 
and  determined  by  this  court,  and  by  which  said  partition 
the  said  commissioners  have  divided  the  whole  of  said  prem- 
ises [other  than  the  portion  thereof  set  off  to  the  defendant, 
M.  F.,  as  her  dower  interest  therein]  into  [two]  allotments 
of  equal  value,  and  have  set  off  in  severalty  to  the  plaint- 


552  THE    LAW    OF    PARTITION. 

ift,  S.  G.,  one  of  the  said  allotments,  bounded  and 
described  as  follows:  [insert  description,']  as  will  more  fully 
appear  by  a  map  of  said  partition  thereto  annexed,  being 
the  lots  marked  A  on  said  map  ;  and  it  also  appearing  by 
said  report  that  by  such  partition  the  said  commissioners 
have  set  off  in  severalty  to  the  defendant,  J.  G.,  the  other 
of  the  said  allotments,  which  is  bounded  and  described  as 
follows,  to  wit:  [insert  description^  as  will  also  more  fully 
appear  by  reference  to  the  said  map  of  the  partition 
annexed  to  such  report,  being  the  lots  marked  B  on 
said  map. 

And  it  further  appearing  by  said  report,  that  the  said 
commissioners  have  set  off  in  severalty  to  the  defendant, 
M.  F.,  as  her  dower  interest  in  said  premises  partitioned, 
the  following  described  property,  to  wit  :  [insert  descrip- 
tion,] and  that  they  have  made  partition  of  the  said  last 
mentioned  lot  among  the  parties  entitled  thereto,  in 
remainder,  as  follows  :  to  the  plaintiff,  S.  G.,the  lot  desig- 
nated on  the  said  map  by  the  letter  E,  and  described  as 
follows,  to  wit:  [insert  description],  and  to  the  defendant, 
J.  G;,  the  lot  designated  on  said  map  by  the  letter  F,  and 
described  as  follows,  to  wit  :  [i]isert  description^  to  be 
enjoyed  by  them  respectively,  upon  the  determination  of 
said  dower  interest  by  the  death  of  the  said  M.  F. 

Now,  on  motion  of  G.  B.  J,,  of  counsel  for  the  plaint- 
iff, after  hearing,  etc.  [or,  no  one  appearing  to  oppose]. 

It  is  ordered,  adjudged  and  decreed,  and  this  court  by 
virtue  of  the  authority  therein  vested,  doth  order,  adjudge 
and  decree,  that  the  said  report,  and  all  things  therein 
contained,  do  stand  ratified  and  confirmed,  and  that  the 
partition  so  made  be  firm  and  effectual  forever. 

And  it  having  appeared  by  the  said  report  that  parti- 
tion cannot  be  made  equal  between  the  parties  according 
to  their  respective  rights,  without  prejudice  to  the  rights 
and  interests  of  some  of  them,  and  that  the  following 
payments  are  necessary  to  produce  such  equality,  it  is 
hereby  ordered  and  adjudged,  that  compensation  be,  and 
is  hereby  awarded  between  the  parties  as  follows  :  that 


FORMS. 


55, 


the  defendant,  J.  G.,  pay  to  said  plaintiff,  S.  G.,  the  sum 
of  dollars. 

And  it  is  further  ordered  and  adjudged,  that  each  of 
the  parties  who  is  entitled  to  the  present  possession  of  a 
distinct  parcel  of  said  premises  hereby  assigned  to  him  be 
let  into  the  possession  thereof  immediately,  and  that  the 
parties  who  are  entitled  to  the  possession  of  distinct 
parcels  of  said  premises  after  the  expiration  of  the  dower 
interest  therein  of  the  defendant,  M.  F.,  be  let  into  pos- 
session thereof  after  the  determination  of  the  said 
estate  of  the  said  M.  F.,  by  the  death  of  the  said  M.  F. 

And  it  is  further  ordered  and  adjudged,  that  the  said 
J.  G.  pay  to  the  said  S.  G.,  the  one-half  of  the  costs  and 
charges  of  the  proceeding  in  this  cause,  the  whole  amount 
of  said  costs  and  charges  being  the  sum  of  dollar^ 

and  that  the  said  S.  G.  have  execution  therefor. 


No.  30. 

Final  Judgment  for  Sale. 

At  a  special  term,  etc, 
[  Title  of  the  cause.'] 

This  action,  having  been  brought  on  for  hearing  upon 
the  pleading  and  proceedings  and  the  report  of  R.  F.,  the 
referee  herein  [and  on  the  exceptions  taken  by  W.  X.  and 
S.  T.,  a  creditor  having  a  specific  lien  upon  the  share  of 
W.     X.],     by    which      report,    dated    the  day 

of  ,  it  appears   \_hej'e  briefly  recite  the  findings 

as  to  the  rights  of  the  parties,  and  the  practicability  of  ac- 
tual partition],  and  on  reading  and  filing  proof  of  due 
service  of  notice  of  this  motion  on  all  the  defendants  who 
have  appeared,  now,  on  motion  of  M.  N.  for  the  plaintiff, 
after  hearing  O.  P.  for  the  defendant  W.  X.,  \or  no  one 
appearing]  in  opposition. 

It  is  Ordered  and  adjudged  [That   said  exceptions  be 


554  THE    LAW    OF    PARTITION. 

disallowed  and  overuled,  and  that  said  report  be,  and  the 
same  hereby  is,  in  all  respects  confirmed,  and]  that  the 
rights  and  interests  of  the  several  parties  to  this  action, 
are  as  stated  and  set  forth  in  the  said  referee's  report;  to 
wit,  that  the  plaintiff  A.  B.  is  entitled  \_setting-  forth  the 
rights  of  the  parties,  as  determincdA^.  And  it  is  ordered 
and  adjudged  that  the  said  report,  and  all  things  therein 
contained,  do  stand  ratified  and  confirmed. 

And  it  is  further  Ordered  and  adjudged,  That  all  and 
singular  the  premises  mentioned  in  the  complaint  in  this 
action,  and  described  as  follows  :  \description'\  be  sold  by- 
public  auction,  in  the  county  of  ,  by  and  under 
the  direction  of  R.  F.,  of  said  county  [the  referee  above 
named];  that  the  said  several  lots  be  sold  separately,  or 
in  such  portions  as  to  the  said  referee  may  be  most  for 
the  interest  of  the  parties  interested  therein;  that  the  said 
referee  give  six  weeks'  previous  notice  of  the  time  and 
place  of  such  sale,  in  one  of  the  public  newspapers  printed 
in  said  county  where  the  said  premises  are  situated, 
and  in  such  other  manner  as  is  required  by  law  and  the 
rules  and  practice  of  this  court;  and  the  plaintiffs  or  any 
of  the  parties  to  this  action,  may  become  the  purchaser 
or  purchasers  thereof;  that  such  sale  shall  be  for 
cash  [cr,  that  said  referee  may  receive  such  proportion  of 
the  price  in  cash,  and  give  such  credit  for  the  balance, 
taking  security  therefor  as  he  may  think  proper,  and  as 
may  be  consistent  with  the  provisions  of  this  judgment]  ; 
that  the  said  referee,  forthwith  after  said  sale,  make  report 
thereof  to  this  court  ;  and  after  his  report  of  sale  shall 
have  been  duly  confirmed,  and  the  judgment  of  this  court 
entered,  that  then  he  execute  a  deed  of  deeds  of  the  said 
premises,  to  the  purchaser  or  purchasers  at  the  said  sale, 
on  their  complying  with  the  conditions  upon  which  the 
deeds  are  to  be  delivered;  and  that  such  sale  and  convey- 
ance be  valid  and  effectual  forever. 

And  it  is  further  Ordered  and  adjudged.  That  the  costs 
of  the  parties  to  this  action,  to  be  taxed,  be  first  appor- 
tioned between  the  said  several  parcels  of  land  and  prem- 


FORMS. 


555 


ises  ratably,  and  paid  out  of  the  proceeds  of  the  sale 
thereof,  in  proportion  to  the  sums  for  which  they  respect- 
ively sell;  the  same  to  be  paid  to  the  respective  attorneys 
of  the  parties;  and  that  said  referees  in  like  manner,  re- 
tain out  of  the  proceeds  of  the  sale  of  each]  the  fees, 
commissions  and  disbursements  to  which  he  is  entitled  on 
such  sale  ;  that  the  said  referee  do  pay  and  discharge  out 
of  the  proceeds,  all  taxes,  charges  and  assessments  which 
may  be  a  lien  upon  the  said  premises,  or  any  part  thereof; 
and  if  the  same  are  a  lien  upon  a  part  only,  then  that  such 
referee  pay  the  same  out  of  the  proceeds  of  such  part,  and 
specify  the  same  in  his  final  report. 

[  Where  there  is  a  creditor  entitled  to  be  paid,  add  .•] 

And  it  is  further  Ordered  and  adjudged,  That  said  ref- 
eree pay  to  S.  T.,  the  sum  of  dollars,  with  interest 
thereon,  from  the  day  of  ,  i8  ,  out  of  the 
share  or  proportion  of  the  defendant,  W.  X.,  in  the  pro- 
ceeds arising  from  said  sale,  that  being  the  amount  of  the 
specific  lien  [by  mortgage]  upon  his  part  of  the 
lands  and  premises  aforesaid. 

[  VVJiere  there  are  dower  rig  Jits,  add  .•] 

And  is  further  Ordered  and  adjudged,  That  the  said  ref- 
eree ascertain  and  report  whether  the  defendant,  U.  V., 
widow  of  \V.  v.,  deceased,  is  willing  to  accept  in  lieu  and 
instead  of  her  dower  interest  in  the  premises  aforesaid,  a 
sum  in  gross  in  satisfaction  thereof,  out  of  the  net  proceeds 
of  the  one  part  of  the  said  premises,  whereof  her  hus- 

band died  seized,  according  to  her  rights  as  ascertained  in 
the  report  of  the  said  referee;  and  what  would  be  a  reason- 
able satisfaction  for  interest  on  the  principles  applicable 
to  life  annuities;  and,  if  the  said  U.  V.  consent  to  accept 
such  gross  sum,  that  such  referee  pay  the  same  to  her, 
upon  her  executing,  acknowledging  and  delivering  to  the 
said  referee,  a  release  to  be  approved  of  by  said  referee,  of 
all  her  right,  title  and  interest  in  the  premises,  and  every 
part  thereof  But  if  she  refuse  to  accept  a  gross  sum  in 
lieu  of  her  dower  interest,  then  it  is  further  ordered  and 
adjudged,  that  the  said  referee,  after  paying  the  costs  and 


556  THE    LAW    OF    PARTITION. 

disbursements,  taxes,  charges  and  assessments,  do  bring 
one-third  of  the  one  part  of  the  net  proceeds  of 

the  said  sale  into  this  court,  to  be  invested  for.  her  bene- 
fit ;  the  interest  or  dividends  thereon,  or  to  accrue  there- 
on, to  be  paid  over  to  her  during  her  natural  life. 

And  it  is  further  Ordered  and  adjudged.  That  the  said 
referee  pay  to  the  plaintiff  one  equal  part  of  the 

residue  of  net  proceeds  of  the  sale  of  the  said  premises  ; 
one  other  equal  part  to  [etc.,  awarding  the  pro- 

ceeds according  the  rights  of  the  parties];  and  that  the 
referee  take  receipts  for  all  such  payments,  and  file  them 
with  his  report  to  be  made  of  his  proceedings,  subsequent 
to  the  confirmation  of  his  report  of  sale. 

And  it  further  Ordered  and  adjudged,  That  such  title, 
deeds  and  writings,  as  may  be  in  the  possession  or  under 
the  control  of  any,  or  of  either  of  the  parties,  and  as 
appear  to  relate  solely  to  any  particular  part  of  said  prem- 
ises, be  delivered  up  to  the  purchaser  of  such  part;  and 
that  all  other  title-deeds  or  writings  relating  to  such 
premises  be  deposited  with  the  clerk  of  this  court,  in  the 
county  of  ,  for  safe  custody,  there  to  remain  for 

the  benefit  of  all  parties  interested  therein. 

And  it  is  further  Ordered  and  adjudged,  That  the  pur- 
chaser or  purchasers  of  any  or  either  of  said  lots  of  land, 
at  such  sale,  be  put  into  possession  thereof;  and  that  any 
of  the  parties  to  this  action  who  may  be  in  possession  of 
such  premises,  or  any  part  thereof,  and  any  person  who, 
since  the  commencement  of  this  action,  has  come  into 
possession  of  them,  or  either  of  them,  deliver  possession 
thereof  to  such  purchaser  or  purchasers,  on  production 
of  the  referee's  deed  for  such  premises. 

And  it  is  further  Ordered  and  adjudged,  That  the  said 
referee  make  a  report  of  his  proceedings  under  this  order, 
subsequent  to  the  confirmation  of  his  report  of  sale  to  be 
made  as  above  directed. 


FORMS,  557 


No,  31. 

Order  modifying  Interlocutory  Judgment 

on  Report  of  Commissioners  that  sale 

is  necessary. 

New  York  Code  Civ.  Pro.  §  1560. 

At,  etc.   [as  in  Form  No.  2^. 
\Title  of  cajise.'] 

On  reading  and  filing  the  report  of  com- 

missioners appointed  to  make  partition  of  the  property- 
sought  to  be  partitioned  in  this  action,  which  report  is 
dated  ,18      ,  and  by  which  it  appears  that  the 

said  property  [or,  that  the  portion  of  said  property  de- 
scribed in  said  report,  to  wit:  [describe  same']  is  so  circum- 
stanced that  a  partition  thereof  cannot  be  made  without 
great  prejudice  to  the  owners  thereof,  and  due  notice  of 
this  motion  having  been  given  to  the  [attorney  for  the] 
guardian  ad  htem  for  the  infant  defendants,  and  the  at- 
torneys wh©  have  appeared  for  other  defendants,  and  the 
court  being  satisfied  that  said  report  is  just  and  correct. 

It  is  hereby  Ordered,  on  motion  of  C.  E.,  counsel  for 
the  plaintiff,  after  hearing,  etc.  [or,  no  one  appearing  on 
the  part  of  the  defendants].  That  the  said  interlocutory- 
judgment  be  and  the  same  is  hereby  modified  so  as  to 
provide  for  the  sale  of  the  said  property  in  the  manner  and 
upon  the  notice  required  by  law,  by  M.  N.,  who  is  hereby 
appointed  referee  for  the  purpose  of  making  such  sale  [<?r, 
by  the  sheriff  of  county]  and  that  said  referee  [or, 

sheriff],  may  give  credit  to  the  purchaser  or  purchasers 
upon  such  sale  for  years,  for  the  part  of  the 

purchase  money  of  said  premises,  to  be  secured  as  follows: 
[State  security  aitd  other  matters  proper  to  be  inserted  in 
case  of  sale;  see  Form  No.  2^.'\ 

And  it  appearing  by  the  search  of  the  clerk  of  the 
county  of  ,  and  by  by  the  affidavits  of  A.  M.  and  C. 


5^8  THE    LAW    OF    PARTITION. 

G.,  therewith  produced,  that  there  is  no  creditor  not  a  party, 
who  has  a  lien  upon  the  undivided  share  or  interest  of  a 
party,  it  is  ordered  that  a  reference  as  to  such  hens  is  dis- 
pensed with. 


No.  32. 

Notice  by  Referee  to  Creditors   to   prove 
Liens  before  him. 

New  York  Code  Civ.  Pro.  §  1562. 
Supreme  Court,  New  York. 
H.  L.,  plaintiff,  1 

V.  \ 

M.  L.,  defendant. 

I,  the  undersigned,  duly  appointed  referee,  by  order  of 
this  court,  dated  and  entered  herein  on  the  day  of 

,18  ,  hereby  require  each  person  not  a  party  to 
the  action  who,  at  the  date  of  the  said  order,  had  a  Hen 
upon  an  undivided  share  or  interest  of  any  of  the  owners 
or  persons  interested  in  the  premises  hereinafter  described, 
to  appear  before  me  on  or  before  the  day  of  , 

18  ,  at  my  office  No.  Broadway,  New  York  city,  to 
prove  his  lien  and  the  true  amount  due,  or  to  become  due, 
to  him  by  reason  thereof. 

The  premises  are  described  in  the  complaint  in  the 
above  entitled  cause  as  follows:   \insert  description^ 

Dated  New  York  City,  ,  li 


J.  W.,  as  referee. 


E.  H.  R., 

Plaintiff's  Attorney, 
Beekman  St.,  New  York  city. 


FORMS.  559 

No.  33. 

Notice  of  Sale. 

[  Title  of  caiLse?^ 

By  virtue  of  an  [interlocutory]  judgment  of  partition 
and  sale,  made  in  the  above  entitled  action  on  the 
day  of  ,  i8     ,  the  subscriber,  a  referee  for  that  pur- 

pose duly  appointed,  will  sell,  at  ,  in  ,  on  the 

day  of  ,  i8     ,  at         o'clock  in  the  noon 

of  that  day,  the  real  property  directed  by  said  judgment 
to  be  sold,  and  therein  described  asfollows(:)  \_dcscriptio7i 
of  premises^ 

M.  R.,  Referee. 

Dated  ,  i8     . 

Another  Form  for  Notice  of  Sale. 

[  Title  of  cause ^ 

Notice  is  hereby  given,  that  the  real  property  described 
as  follows  :  \description  of  land,']  will  be  sold  by  the 
undersigned  referee  [(?r,  sheriff  of  county],  at  public 

auction,  at  ,  in  the  city  of  ,  in  the  county  of 

,  at  o'clock  in  the  noon  on  the  day  of  , 
1 8  ,  pursuant  to  the  [interlocutory]  judgment  of  parti- 
tion made  and  entered  in  the  above  entitled  action  in  this 
court,  on  the  day  of  ,  i8     . 

L.  M.,  Referee  {or,  Sheriff]. 

Dated  ,  i8     . 

Another  Form. 

Supreme  Court,  City  and  County  of  New  York. 
E.  T.,  plaintiff, 

V. 

E.  T.  and  others,  defend'ts. 


In  pursuance  of  a  judgment  of  partition  and  sale  duly 
made  and  entered  in  the  above  entitled  action  and  bear- 


560  THE    LAW    OF    PARTITION. 

ing  date  at  a  special  term,  on  the  day  of  ,  18     , 

I,  E.  W.,  the  undersigned,  the  referee  duly  appointed,  to 
execute  the  said  judgment  to  make  the  sale  thereunder, 
will  sell,  at  public  auction,  at  the  Real  Estate  Exchange 
and  Auction  Room,  limited,  at  Nos.  59-65  Liberty  street, 
in  the  city  and  county  of  New  York,  on  the  day  of 
,18  ,  at  12  o'clock  noon,  by  J.  L.  P.,  auctioneer, 
the  premises  in  said  judgment  mentioned  and  therein  de- 
scribed as  follows,  to  wit  :  [describe  them.'] 

E.  P.  VV.,  Referee. 
Dated  ,18     . 

J.  C.  &  B.,  Attorneys  for  Plaintiff, 
Wall  St.,  New  York  city. 


No.  34. 

Referee's  !^eport  of  Sale  in  Partition,  Fore- 
closure, or  other  Action. 

[  Title  of  cause ^ 

To  the  court  of  : 

In  pursuance  of  a  judgment  of  this  court,  in  this  action, 
bearing  date  the         day  of  ,  18     ,  I,  R.  F.,  referee, 

to  whom  the  execution  thereof  was  confided,  do  report. 

That  I  caused  notice  of  the  time  and  place  of  sale  of 
the  premises  mentioned  in  the  judgment,  containing  a 
brief  description  thereof,  to  be  published  \liere  state  mode, 
so  as  to  show  compliance  with  the  directions  of  the  judg- 
ment and  rules  of  cotirt\  And  agreeably  to  said  notice, 
I  did,  at  the  time  and  place  specified  in  the  notice,  to  wit, 
the  day  of  ,18     ,  at  noon,  attend  at  the  in 

said  city,   and    expose   said  premises  for  sale,  by  public 
auction  to  the  highest  bidder. 

And  I  further  report,  that  the  said  premises  were  then 
and  there  fairly  struck  off  and  sold  to  M.  N.  for  dol- 

lars, he  being  the  highest  bidder  therefor,  and  that  being 
the  highest  sum  bid  for  the  same. 

\_0r,  where  there  are  several  parcels']:    And  I  further 


FORMS.  561 

report,  that  the  several  lots  or  parcels  of  land  so  directed 
to  be  sold  as  aforesaid,  were  put  up  for  sale  separately, 
and  were  each  and  every  one  of  them  fairly  struck  off  and 
sold  to  M.  N,,  for  the  following  sums  respectively  :  [// <;';'<? 
name  tJie parcels  aiid price s\\  those  sums  being  the  high- 
est sums  bid  for  the  said  lots  respectively,  and  the  said 
M.  N.  being  the  highest  bidder  therefor ;  which  several 
sums  amount,  in  the  aggregate,  to  dollars.* 

And  I  do  further  report,  that  I  received  from  the  said 
purchaser  the  amounts  so  bid  by  him  as  above  mentioned, 
and  that  thereupon  I  executed,  acknowledged,  and  deliv- 
ered to  said  purchaser  the  usual  referee's  deed  for  said 
premises,  and  that  I  have  paid  over  and  disposed  of  the 
purchase  or  proceeds  of  sale  as  follows,  viz.: 

I  have  retained  in  my  hands  the  sum  of  dollars,, 

being  the  amount  of  my  fees  and  expenses  on  said  sale. 

I  have  paid  \Jicre  enumerate  in  detail  the  payments- 
made,  according  to  the  Judgment;  and  in  case  of  a  snrpliis- 
in  for  closure,  add  :\  and  I  have  deposited  the  balance, 
being  the  sum  of  dollars,  in  the  hands  of  the  county 

treasurer  of  county  to  the  credit  of  the  clerk 

of  this  court,  as  directed  by  said  judgment. 

\_In  case  of  a  deficiency  in  foreclosure,  substitute  for 
the  foregoing  sentence:^  And  I  have  paid  the  plaintiff, 
through  his  attorney,  the  whole  of  the  residue,  being  the 
sum  of  dollars;  and  I  also  report,  that  the  deficiency 

due  to  the  plaintiff  from  the  defendant  Y.  Z.,  and  for 
which  he  is  personally  liable  under  the  judgment  herein, 
is  dollars,  with  interest  from  the  date  of  this  my 

report. 

I  have  taken  receipts  for  the  sum  so  paid,  which  arc- 
hereto  annexed. 

The  schedule  hereto  annexed  contains  a  statement  of 
the  sums  thus  received  and  paid  out. 

[I  do  also  report,  that  I  have  let  the  said  M.  N.  into 
possession  of  said  premises.] 

All  which  is  respectfully  submitted. 

\Pate^  [Signature.] 

36 


562  THE    LAW    OF    PARTITION. 


No.  85. 

The  same,    where  the    Purchaser  has    not 
completed  his  Purchase. 

[As  in  preceding  forjH  to  the  *,  concluding  thus  /] 

That  the  terms  and  conditions  of  such  sale  were 
reduced  to  writing,  and  made  known  to  the  persons 
attending  such  sale,  previous  to  putting  up  said  premises, 
and  were  as  follows  :  [that  the  purchaser  of  each  lot  or 
separate  parcel  was  to  pay  ten  per  cent,  of  the  purchase 
money  down,  on  the  day  of  sale,  and  the  residue  when 
the  sale  should  be  confirmed  and  the  deed  delivered.] 
And  that  the  said  M.  N.  has  signed  the  written  conditions 
of  sale  above  mentioned,  together  with  an  acknov/ledg- 
ment  that  he  has  purchased  the  premises  upon  those 
terms,  and  he  has  paid  to  me  the  amount  required  to  be 
paid  down. 

All  of  which  is  respectfully  submitted. 

[Date.^  [Signature.] 


No.  36. 
Report  of  Sale  in  Partition. 

[  Title  of  action  ^^ 

To  the  supreme  court  of  the  State  of  New  York  : 

In  pursuance  of  an  order  made  in  this  court  in  the 
above  action,  and  dated  the  day  of  last,  I,  the 

subscriber,  referee,  duly  appointed,  to  whom  the  execution 
thereof  was  confided,  do  report : 

That  having  caused  a  notice  of  the  time  and  place  of 
sale  of  the  premises  mentioned  in  said  decretal  order,  con- 
taining a  brief  description  thereof,  to  be  published,  once 
in  each  week,  for  six  weeks  immediately  previous  to  such 


FORMS.  563 

sale,  in  one  of  the  public  newspapers  printed  in  the  county 
of  ,  where  such  premises  are  situated,  and  having 

also  caused  a  copy  of  such  notice  to  be  put  up  at  three  of 
the  most  public  places  in  the  city  of  ,  where  the  said 

premises  are  situated  :  I  did,  on  the  day  of  , 

18  ,  at  12  o'clock,  noon,  that  being  the  time  specified  in 
the  said  notice,  attend  at  the  rotunda  of  the  Merchants' 
Exchange  in  said  city,  the  place  therein  mentioned,  and 
exposed  the  said  premises  for  sale,  at  public  auction,  to 
the  highest  bidder,  as  directed  by  said  order. 

I  do  further  report,  that  the  several  lots  or  parcels  of 
land  so  directed  to  be  sold  as  aforesaid,  were  put  up  for  sale 
separately,  and  were  each  and  every  one  of  them  struck  off 
to  T.  B.,  for  the  following  sums  :  lot  No.  i,  for  the  sum 
of  dollars  ;  lot  No.  2,  for  the  sum  of  dollars  ; 

and  lot  No.  3.  for  the  sum  of  dollars  ;  those  sums 

being  the  highest  sums  bidden  for  the  said  lots  respec- 
tively, and  the  said  T.  B.  being  the  highest  bidder  there- 
for ;  which  several  sums  amount,  in  the  aggregate, 
to  dollars. 

That  the  terms  and  conditions  of  such  sale  were  re- 
duced to  writing,  and  made  known  to  the  persons  attend- 
ing such  sale,  previous  to  putting  up  the  said  lots,  and 
were  as  follows  :  the  purchaser  or  purchasers  of  each  lot, 
or  separate  parcel,  were  to  pay  ten  per  cent,  of  the  pur- 
chase money  down,  on  the  day  of  sale,  and  the  residue 
when  the  sale  should  be  confirmed  and  the  deed  delivered; 
and  that  the  said  T.  B.  has  signed  the  written  conditions 
of  sale  above  mentioned,  together  with  an  acknowledg- 
ment that  he  has  purchased  the  premises  upon  those 
terms,  and  he  has  paid  to  me  the  amount  required  to  be 
paid  down. 

All  of  which  is  respectfully  submitted. 

Dated  ,  18     . 

A-  B.,  Referee. 


564  THE    LAW    OF    PARTITION. 

No.  37. 

Final  Report  after  Sale  in  Partition. 

\^Title  of  action.^ 

To  the  supreme  court  of  the  State  of  New  York  : 

In  pursuance  of  an  order  of  this  court,  made  the 
day  of  ,18,1,    the   subscriber,    do   respectfully 

report  : 

That  in  obedience  to  the  said  order,  I  have  executed, 
acknowledged,  and  delivered  to  L.  B.,  the  purchaser  of 
the  premises  directed  to  be  sold  by  me,  a  deed  of  such 
premises,  on  receiving  from  him  the  sum  of  dollars, 

the  price  or  sum  for  which  the  said  premises  were  sold  to 
him,  as  mentioned  in  my  former  report  of  such  sale,  made 
in  pursuance  of  said  order,  bearing  date  the  day 

of  last  past  ;  and  upon  his  complying  with  all  the 

conditions  upon  which  the  said  deed  was  to  be  delivered. 

And  I  further  report,  that  I  have  paid  to  the  attorney 
for  the  plaintiff  in  this  action,  the  sum  of  dollars, 

for  the  costg  of  the  plaintiff  as  taxed  in  this  action,  and 
have  taken  a  receipt  therefor,  which  is  hereto  annexed; 
that  I  have  paid  M.  S.,  the  guardian  ad  litem  of  the  infant 
defendants,  the  sum  of  dollars,  being  the  amount  of 

his  costs,  as  taxed,  and  have  taken  his  receipt  therefor, 
which  is  hereto  annexed  ;  that  I  have  retained  in  my 
hands  the  sum  of  dollars,  being  the  amount  of  my 

fees  and  disbursements  on  said  sale  ;  that  I  have  paid  to 
the  collector  of  the  town  of  the  sum  of 

dollars,  for  taxes  upon  the  said  premises  ;  that  I  have 
paid  the  defendant  M.  C,  the  sum  of  dollars,  being 

the  amount  reported  due  to  him  upon  his  mortgage  on 
the  said  premises;  that  I  have  paid  to  C.  M.,  dollars. 

due  on  his  judgment  against  the  plaintiff  in  this  action. 

And  I  further  report,  that  the  residue  of  the  net  pro- 
ceeds of  the  sale  of  the  said  premises,  I  have  divided  and 
distributed  as  follows  :  to  the  plaintiff,  the  sum  of 


FORMS.  565 

dollars,  which,  with  judgment  docketed  against  him  and 
paid  as  above,  is  his  share  of  the  distributive  proceeds  ;  to 
the   defendant  R.  M.,  the  sum   of  dollars,  which, 

with  the  amount  paid  to  satisfy  the  said  bond  and  mort- 
gage, is  his  share  of  the  distributive  proceeds  ;  and  to  the 
defendant  R.  C.  and  wife  the  sum  of  dollars,  being 

their  share  of  the  said  proceeds,  in  right  of  the  said  wife  ; 
and  the  remaining  share  of  dollars  belonging  to  the 

infant  defendants,  subject  to  the  dower  interest  of  their 
mother,  [she  declining  to  receive  a  gross  sum  in  satisfac- 
tion thereof,]  I^  have  now  brought  into  court  that  the 
same  may  be  invested  for  their  benefit.  And  that  I  have 
taken  from  the  plaintiff  and  such  defendants  as  have 
received  their  shares,  their  respective  receipts  for  the  sev- 
eral amounts  paid  to  them  as  aforesaid 

And  I  further  report  that  I  have  let  the  said  L.  B. 
into  the  possession  of  the  premises  so  purchased  by  him. 

All  of  which  is  respectfully  submitted. 

Dated  ,18    . 

A.  B.,  Sole  Referee. 


No.  38. 
Referee's  Report  of  Sale  in  Partition  Suit. 

New  York  Code  Civ.  Pro.  §  1576, 

[  Title  of  canse.'\ 

To   the   supreme   court  of  the   State  of  New  York  [^or, 

7iaine  other  court\  : 

In  pursuance  of  an  interlocutory  judgment  made  in  the 
above  entitled  action,  on  the  day  of  ,18     ,  I, 

the  subscriber,  the   referee  duly  appointed  by  said  judg- 
ment, do  hereby  respectfully  report  : 

That  having  caused  a  printed    [or,  written]  notice  of 


566  THE    LAW    OF    PARTITION. 

the  time  and  place  of  sale  of  the  premises  mentioned  in 
the  said  judgment  and  thereby  directed  to  be  sold  to  be 
conspicuously  fastened  up,  at  least  forty-two  days  before 
the  sale,  in  three  public  places  in  the  town  [or,  city] 
where  the  sale  was  to  take  place  [and  also  in  three  public 
places  in  the  town  [or,  city]  where  the  said  property  is 
situated],  and  having  caused  a  copy  of  said  notice  to  be 
published,  once  in  each  week  of  the  six  weeks  immediately 
preceding  the  sale,  in  a  newspaper  published  in  the  county 
of  [or,  in  the  newspaper  printed  at  Albany,  in  which 

legal  notices  are  required  to  be  published],  I  did,  on 
the  day  of  ,   18     ,  at  o'clock  in 

the  noon,  that  being  the  time  specified  in  the  said 

notice,  attend  at  the  [American  hotel],  in  the  village 
of  ,  the  place  therein  mentioned,  and  exposed  the 

said  premises  for  sale,  at  public  auction  to  the  highest 
bidder,  as  directed  by  said  judgment. 

I  do  further  report,  that  the  several  lots  or  parcels  of 
land  so  directed  to  be  sold,  as  aforesaid,  were  put  up  for 
sale  separately,  and  were,  each  and  every  one  of  them, 
struck  off  to  J.  K.  for  the  following  sums  :  the  lot 
described  as  follows  [describe  it\,  for  the  sum  of 
dollars  ;  the  lot  described  as  follows  [describe  it'],  for  the 
sum  of  dollars  ;  those  sums  being  the  highest  sums 

bidden  for  the  said  lots  respectively,  and  the  said  J.  K. 
being  the  highest  bidder  therefor,  which  several  sums 
amount  in  the  aggregate  to  dollars. 

That  the  terms  and  conditions  of  such  sale  were 
reduced  to  writing,  and  made  known  to  the  persons 
attending  such  sale,  previous  to  putting  up  the  said  lots, 
and  were  as  follows  :  the  purchaser  or  purchasers  of  each 
lot,  or  separate  parcel,  were  to  pay  ten  per  cent,  of  the 
purchase  money  down  on  the  day  of  sale  and  the  residue 
when  the  sale  should  be  confirmed  and  the  deed  delivered 
[or  state  other  terms  of  sale,  or  annex  a  copy  of  the  terms 
vf  sale  and  refer  to  it]  ;  and  that  the  said  J.  K.  has  signed 
the  written  conditions  of  sale  above  mentioned,  together 
with  an  acknowledgment  that  he  has  purchased  the  prem- 


FORMS. 


567 


ises  upon  those  terms,  and  he  has  paid  me  the  amount 
required  to  be  paid  down. 

All  of  which  is  respectfully  submitted. 

Dated  ,  18     . 

M.  R.,  Referee 
County,  ss  : 

M.  R.,  of  ,  being  duly  sworn,  says,  that  he  is  the 

referee  mentioned  in  and  who  subscribed  the  foregoing 
report  of  sale,  and  that  the  statements  contained  in  said 
report  are  true  to  the  best  of  his  knowledge  and  belief. 

[Jurat.'\  1^^  ^ 


No.  39. 

Affidavit  on  Application  by  Party  for  Money 
Paid  into  Court  by  Referee. 

New  York  Code  Civ.  Pro.  §  1564. 
[  Tifle  of  cause.'] 

County,  ss  : 

A.  B.,  of  ,  being  duly  sworn,  says,  that  he  is  one 

of  the  defendants  in  the  above  entitled  action  ;  that  said 
action  was  brought  for  the  partition  of  certain  real  prop- 
erty situated  in  the  county  of  ,  in  which  deponent 
had  the  one-             interest. 

That  by  the  interlocutory  judgment   entered    in   said 
action  on  the  day  of  ,  18     ,  a  sale  was  directed 

of  [a  portion  of]  said  real  property  by  M.  R.,  who  was 
appointed  referee  for  the  purpose  of  making  such  sale. 

That,  under  the  directions  of  said  judgment,  the  sum 
of  dollars  was  paid  into  court  and  to  the  county 

treasurer  of  county  by  said  referee,  being  the  pro- 

ceeds of  the  sale  of  said  share  or  interest  of  deponent  in 
said  property  sold,  and  that  said  sum  is  now  in  the  hands 
of  the  said  county  treasurer. 

And  deponent   further  says,  that   his   said  interest   in 
said  property  was,  at  the  time  of  such  sale,  subject  to  the 


568  THE    LAW    OF    PARTITION. 

lien  of  a  certain  mortgage,  executed  by  this  deponent  to 
F.  C,  dated  ,  18     ,  and  recorded  in  county 

clerk's  office  on  the  day  of  ,  18     ,  in  book 

of  mortgages  No.  ,  at  page  [or  describe  other  inciun- 

d  ranee']. 

That  said  F.  C.  is  now  the  owner  of  said  [mortgage], 
and  that  said  F.  C.  resides  at  ,  in  the  of 

,  in  the  state  of 

[Or,  that  deponent  has  made  diligent  search  and  inquiry 
as  to  the  name  and  place  of  residence  of  the  present  owner 
of  said  mortgage,  as  follows  [here  state  efforts  made'],  and, 
that  so  far  as  can  be  ascertained  by  this  deponent,  the 
name  of  said  owner  is  M.  N.,  whose  place  of  residence  is 
at  ,  in  the  state  of  .] 

That  the  amoun*  actually  due  upon  the  said  mortgage 
is  the  sum  of  dollars,  and  that  there  are  no  other 

incumbrances  upon  the  said  share  of  deponent,  as  he 
verily  believes. 

That  deponent  has  caused  a  notice  to  be  served  upon 
said  F.  C.  of  an  application  to  be  made  at  a  term 

of  this  court,  to  be  held  at  ,  on  the  day 

of  ,  18     ,  for  an  order  directing  that  the  said  sum 

in  court  [or,  that  the  amount  of  dollars,  out  of  said 

sum  in  court]  be  paid  to  deponent  by  said  county  treas- 
urer, as  will  appear  from  the  affidavit  of  C.  I.,  which  is 
hereto  annexed.  A.  B. 

[Jurat.] 

No.  40. 

Notice  of  Application  to  the  Court  for 
jyioneys. 

New  York  Code  Civ.  Pro.  §  1564. 

[  Title  of  cause.] 
To  F.  C,  of 

Take  notice,  that  an  application  will  be  made  [upon 
the  affidavit   herewith   served   upon   you]    at  a  [special] 


FORMS.  569 

term  of  the  [supreme]  court,  to  be  held  at  ,  on 

the  day  of  ,   18     ,  at  the  opening  of 

the  court  on  that  day,  or  as  soon  thereafter  as  counsel 
can  be  heard,  by  C.  B.,  a  defendant  in  the  above  entitled 
action,  for  an  order  directing  that  the  sum  of  dollars 

[part  of  the  amount]  paid  into  court  by  the  referee  who 
made  the  sale  under  interlocutory  judgment  of  certain 
real  property  in  partition  in  said  action  in  which  said  C. 
B.  had  an  interest  and  now  in  the  hands  of  the  county 
treasurer  of  county,  be  paid  to  said  C.  B. 

This  notice  is  given  to  you  as  the  owner  of  a  certain 
mortgage  executed  by  said  C.  B.  to  ,  dated  , 

18  . ,  and  recorded  in  the  county  clerk's  office, 

on  the  day  of  ,  18     ,  in  book  No. 

of  mortgages,  at    page  [or  describe  other  UeiiX,  which 

said  [mortgage]  was  [or  appeared  to  be]  a  lien  upon  the 
said  interest  of  said  C.  B.  in  said  property  sold  at  the 
time  of  such  sale  [the  amount  for  which  such  application 
is  to  be  made,  as  aforesaid,  being  the  balance  of  said 
money  paid  into  court  above  the  amount  claimed  to  be 
due  upon  said  [mortgage]  ]. 

Dated  ,18     . 

T.  R.,  Attorney  for  said  C.  B. 
\Office  address^ 


No.  41. 

Affidavit  of  Service  upon  Owner  of  incnm- 

brance  of  Application  by  Owner  for 

Moneys. 

New  York  Code  Civ.  Pro.  §  1564. 

[Title  of  cajise.l 

County,  ss  : 

C.  M.,  of  ,  being  duly  sworn,  says,  that  on 

the  day  of  ,  18     ,  he    served   a    copy 

of  the  annexed  notice,  and  of  the  affidavit  therein  referred 

to,  on  F.  C,  of  ,  to  whom  said  notice  is  directed, 


570  THE    LAW    OF    PARTITION. 

by  delivering  said  copy  to  him,  personally,  at  the 
of  ,  in  the  State  of  [or,  by  leaving  said 

copy  at  the  residence  of  said  F.  C,  at  ,  in  the 

State  of  ,  with   a  person    of  suitable   age   and 

discretion,  to  wit,  of  the  age  of  at  least  years]. 

[Jura^.]  '  C.  M. 

No.  42. 

Consent  of  Party  to  accept  G-ross  Sum  in 
lien  of  Dower,  etc. 

New  York  Code  Civ.  Pro.  §  1569. 

[  Title  of  cause ^ 

I,  M.  B.,  one  of  the  defendants  in  the  above  entitled 
action,  having  a  right  of  dower  {or,  as  tenant  for  life  ;  or, 
as  tenant  for  the  term  of  years]  in  the  undivided 

share  of  the  [defendant],  F.  B.,  in  the  [portion  of  the] 
premises  described  in  the  complaint  in  this  action,  of 
which  a  sale  has  been  made,  do  hereby  consent  to  receive 
from  the  proceeds  of  such  sale  a  gross  sum,  to  be  fixed 
according  to  the  principles  of  law  applicable  to  annuities, 
in  satisfaction  of  my  said  estate,  right  and  interest  in  said 
premises. 

In  witness  whereof,  I  have  hereunto  set  my  hand, 
this  day  of  ,  18     .  M.  B. 

In  presence  of 

[Acknowledgment  as  prescribed  by  the  law. 'I 


No.  43. 

Release  by  Married  Woman  of  Inchoate 
Dower  Kiglit  to  lier  Husband. 

New  York  Code  Civ.  Pro.  §  1571. 

[Title  of  cause  7\ 

I,  F.  M.,  wife  of  the  defendant,  C.  M.,  and  one  of  the 
defendants  in  the  above  entitled  action,  do  hereby  release 


FORMS. 


5/1 


to  the  said  F.  M.  my  inchoate  right  of  dower  in  the  [por- 
tion of  the]  property  described  in  the  complaint  herein, 
directed  to  be  sold  by  the  interlocutory  judgment  entered 
herein,  to  wit  :   [describe  property.^ 

In  witness  whereof,  I  have  hereunto  set  my  hand  and 
seal,  this  day  of  ,  i8     . 

F.  M.  [L.  s.] 
In  presence  o. 

[Acknowledgment  as  prescribed  by  law.] 


No.  44. 

Final  Judgment  in  Partition  Suit,  on  Con- 
fi-rmation  of  Referee's  Report  of  Sale. 

New  York  Code  Civ.  Pro.  §  1577. 

At,  etc.  [as  in  Form  No.  2/f\. 
[Title  of  cause  ^ 

This  cause  coming  on  for  a  final  hearing  upon  the 
report  of  the  referee  appointed  to  make  sale  of  the  prop- 
erty sought  to  be  partitioned  in  this  action,  which  report 
bears  date  on  the  day  of  ,  18     ,  and 

due  notice  having  been  given  to  the  attorneys  for  the 
parties  defendant  who  have  appeared  therein,  and  to  the 
[attorney  for  the]  guardian  ad  litem  of  the  infant  defend- 
ants, of  this  application  for  the  confirmation  of  said  report 
and  for  final  judgment  thereupon  ;  and  on  motion  of  I.  J., 
for  the  plaintiff,  after  hearing  J.  M.,  for  the  defendant,  E. 
G.  \or,  no  one  appearing  for  the  defendants]  : 

It  is  Ordered  and  adjudged,  That  said  report,  and  the 
sale  therein  mentioned,  be  and  the  same  are  hereby  in  all 
things  confirmed,  and  that  said  referee  execute  to  the 
purchaser,  upon  said  sale,  a  conveyance  of  the  property 
sold,  upon  his  complying  in  all  respects,  with  the  terms 
upon  which  the  said  sale  was  made,  as  stated  in  the  said 
referee's  report  ;  and  that  the  said  referee  first   deduct 


r^2  THE    LAW    OF    PARTITION. 

from  the  proceeds  of  said  sale  the  fees  and  disbursements 
to  which  he  is  entitled  on  such  sale,  and  that  the  said 
referee  pay  all  taxes,  assessments  and  water-rates,  which 
are  liens  upon  the'property  sold,  and  redeem  the  property 
sold  from  any  sales  for  unpaid  taxes,  assessments  of  water- 
rates  which  have  not  apparently  become  absolute,  and 
that  the  costs  and  expenses  of  the  proceedings  in  this 
suit,  which  are  adjusted  according  to  law  at  the  sum 
of  dollars,  be    deducted    from    the   proceeds   of 

such  sale,  and  that  the  said  referee  pay  the  same  to  the 
plaintiffs  attorney. 

And  it  is  further  ordered  and  adjudged,  that  the  said 
referee  pay  to  the  [attorney  for  the]  guardian  ad  litem  of 
the  infant  defendants,  out  of  the  proceeds  of  such  sale, 
the  sum  of  dollars,  for  his  costs  in  this  action. 

And  the  defendant,  M.  B.,  having  by  her  written  con- 
sent, duly  acknowledged  [or,  proved],  and  filed,  consented 
to  receive  a  gross  sum  from  the  proceeds  of  such  sale,  to 
be  fixed  according  to  the  principles  of  law  applicable  to 
annuities,  in  satisfaction  of  her  right  of  dower  in  the 
premises  sold  : 

It  is  hereby  ordered  and  adjudged,  that  the  said 
amount,  which  has  been  fixed  by  the  court  at  the  sum 
of  dollars,  be  paid  out  of  the  residue  of  said  pro- 

ceeds of  sale  remaining  after  paying  the  costs  and 
expenses  aforesaid,  to  the  said  M.  B.,  upon  her  receipt 
therefor,  in  satisfaction  of  her  said  dower  right. 

[Or,  that  out  of  the  residue  of  said  proceeds  of  sale 
remaining  after  paying  the  costs  and  expenses  aforesaid, 
the  said  referee  pay  the  one-third  part  into  court  for  the 
purpose  of  its  being  invested  for  the  benefit  of  the  defend- 
ant, M.  B.,  such  investement  to  be  made  in  permanent 
securities,  at  interest,  and  the  interest  to  be  paid  from 
time  to  time,  as  it  accrues,  to  the  said  M.  B.,  during  her 
life.] 

And  it  is  further  ordered  and  adjudged,  that  the  said 
referee  pay  and  distribute  the  residue  of  the  proceeds  of 
such   sale,    remaining  after   paying  therefrom    the    said 


FORMS.  573 

costs,  expenses,  taxes  and  assessments,  and  providing  for 
the  said  dower  interest  of  said  defendant,  M.  B.,  as  follows, 
viz.  :  to  the  plaintiff  and  the  defendants,  F.  G.,  M.  G.  and 
D.  F.,  each  the  one  part  thereof;  to  the  defend- 

ant B.  G.  the  one  part  thereof,  on  his  obtaining  the 

release  of  his  wife,  the  defendant,  P.  G.,  to  him,  of  her 
inchoate  dower  interest  in  said  premises,  duly  executed 
and  acknowledged  as  required  by  law  ;  or,  if  said  P.  G. 
shall  not  execute  such  release,  then  that  said  referee  pay 
over  to  her  the  sum  of  dollars,  which  is  hereby 

fixed  as  the  proportional  value  of  her  said  dower  right, 
according  to  the  principles  of  law  applicable  to  annuities 
and  survivorships,  in  full  discharge  of  her  said  dower 
right  [or,  insert  other  directions  which  may  be  proper  in 
such  case.'\ 

And  that  said  referee  pay  to  the  defendant,  S.  G.,  the 
one  part  of  said  residue,  upon  the  joint  receipt  of 

herself  and  her  husband,  M.  G.;  or,  if  said  M.  G.  shall 
refuse  to  execute  such  receipt,  then  that  said  referee  pay 
the  one  part  of  said  proceeds,  to  which  the  said 

S.  G.  would  be  entitled,  into  court. 

And  that  said  referee  pay  to  the  defendant,  J.  C,  as 
executor  and  trustee,  named  in  the  will  of  S.  F.,  deceased, 
the  one  part  of  said  residue,  to  be  held  by  him  in 

trust,  to  receive  the  rents  and  profits  thereof,  and  apply 
the  same  to  the  use  of  [the  defendant]  said  F.  B.,  during 
his  life,  in  accordance  with  the  provisions  of  the  said  will. 

And  that  said  referee  bring  into  court,  to  be  invested 
in  permanent  securities,  at  interest,  in  their  names  and  for 
their  benefit,  the  two  one-  parts  of  said  residue 

to  which  tiie  infant  defendants,  M.  F.  and  G.  H.,  are  enti- 
tled; and  that  said  referee  bring  into  court,  and  deposit 
with  the  county  treasurer  of  county,  subject  to 

the  order  of  this   court,   the  one   equal  part  of 

such  residue  for  the  benefit  of  owners  unknown,  to  be 
invested  in  permanent  securities,  at  interest,  for  their  ben- 
efit, until  claimed  by  them  or  their  legal  representatives. 

And  it  is   further   ordered   and   adjudged,    that   said 


574  THE    LAW    OF    PARTITION. 

referee  take  receipts  for  the  amounts  so  paid  by  him,  and 
file  them  with  his  final  report,  to  be  made  subsequent 
hereto. 

And  it  is  further  ordered  and  adjudged,  that  the  said 
purchaser  be  let  into  possession  of  the  said  property,  and 
that  any  of  the  parties  to  this  action  who  may  be  in  pos- 
session of  said  premises,  or  any  part  thereof,  and  any  per- 
son who,  since  the  commencement  of  this  action,  has 
come  into  the  possession  of  said  property  sold,  or  any 
part  thereof,  deliver  possession  thereof  to  such  purchaser, 
on  production  of  the  referee's  deed  of  said  premises. 

And  it  is  further  ordered,  that  the  said  referee  make 
a  report  of  his  proceedings  under  this  judgment. 


No.  45. 
Order  Confirming  Referee's  Report  of  Sale. 

At  a  special  term,  etc. 
\Title  of  causc^ 

On  reading  and  filing  the  report  of  R.  F.,  Esq.,  referee, 
appointed  to  sell  the  premises  described  in  the  complaint 
in  this  action,  which  report  bears  date  the  day 

of  ,  i8     ,  and  on  filing  proof  of  service  of  due 

notice  of  this  motion  on  all  the  parties  who  have  appeared 
in  this  action  : 

Ordered,  That  the  said  report  be,  and  the  same  is 
hereby  in  all  respects  confirmed. 


No.  46. 

Notice  of  Motion  to  compel  Pnrchaser   to 
complete  his  Purchase. 

[  Title  of  cause.] 

Take  notice,  that  on  the  affidavit  of  which  a  copy  is 
herewith  served,  and  on  the  judgment  and  proceedings  in 


FORMS.  575 

this  cause,  the  undersigned  will  move  this  court,  at  a 
special  term  thereof,  to  be  held  in  the  court-house,  in  the 
city  of  ,  on  the  day  of  i8     ,  at 

ten  o'clock  in  the  forenoon,  or  as  soon  thereafter  as  coun- 
sel can  be  heard,  for  an  order  requiring  you  to  complete 
your  purchase  mentioned  in  said  affidavit,  and  to  pay  the 
amount  bid  therefor,  and  for  such  other  relief  as  may  be 
just,  together  with  the  costs  of  this  motion. 

[Stp-nafure.] 

[DaU.]  ■" 

[Adc/ress  to  ptirchaser.'\ 


No.  47. 

Affidavit  to  accompany  the  above  Notice  of 

Motion. 

{Title  of  caused 

State  of  ,  county  of  ,  ss.  : 

,  being  duly  sworn,  says,  that  he  is  the 
attorney  for  the  plaintiff  in  this  action;  that  the  action 
was  instituted  for  the  partition  of  certain  real  estate,  or 
the  sale  thereof,  the  same  being  fully  described  in  the 
complaint  herein  ;  that  said  premises  were  offered  for 
sale  in  accordance  with  the  law  in  such  case  made  and 
provided,  and  in  pursuance  of  proper  notice  thereof,  and 
under  the  direction  of  the  sheriff  of  county  \or, 

of  R.  R,  referee,  duly  appointed  for  such  purpose],  whose 
report  of  sale  is  hereto  annexed,  on  the  day 

o^  ,  i8       ,  under  the  usual  terms  of  sale,  and 

purchased  by  ;  that  by  the  terms  of  the  sale, 

the  deed  was  to  be  delivered  to  the  purchaser,  and  the 
purchase  money  was  to  be  paid  to  the  said  sheriff  {or, 
referee]  on  or  before  the  day  of  i8 

that  said  purchaser  declines  to  complete  his  purchase, 
alleging  that  the  proceedings  in    the  action  arc   irregular 


576  THE    LAW    OF    PARTITION, 

and  void,  as  follows  :  .     deponent  further  states, 

that  the  affidavit  of  the  said  sheriff  [or,  referee]  making 
such  sale,  is  hereto  annexed. 

[Si£^naiure.] 

[Jurat.] 


No.  48. 

Order  compelling    Purchaser  to    complete 
Ills  Purcliase. 

At  a  special  term,  &c. 
[Title  of  cause  ?^ 

On  reading  and  filing  the  affidavit  of  ,  attor- 

ney for  the  plaintiff,  and  the  report  of  the  sheriff  making 
the  sale,    and   alter   hearing  ,    counsel  for  the 

plaintiff,  in  favor  of  the  motion,  and  ,  in  oppo- 

sition thereto : 

Ordered,    That    the    said    motion    be,    and    the   same 
hereby  is*  granted,  and  that  ,  the   purchaser  of 

the  premises  as  set  forth  "in  said  affidavit,  and  in  the 
report  of  the  referee,  be,  and  he  hereby  is  directed  to 
complete  the  purchase  of  the  premises  within  days 

from  the  service  of  a  certified  copy  of  this  order  upon  him. 


No.  49. 
Order  Discliargiiig  Purchaser. 

[A  s  in  preceding  form  to  the  *,  t/ien  continuing]  denied, 
and    that  the  ,  purchaser,  be  discharged  from 

his  said  purchase,  and  that  the  referee  conduct- 

ing said  sale,  shall  repay  to  said  purchaser  all  moneys 
paid  by  him  to  said  referee  upon  said  purchase. 

And  it  is  further   ordered,  that   the   plaintiff  in  this 


FORMS.  577 

action,  on  demand,  pay  to   the  said  ,  the  pur- 

chaser aforesaid,  his  expenses  of  examining  the  title, 
which  are  hereby  fixed  and  allowed  at  the  sum 
of  dollars,  together  with  dollars,  costs 

of  this  motion. 

[/;/  case  the  court  should  set  aside  the  sale,  the  order  will 
be  as  folloxvs  /]  And  that  the  sale  be  set  aside,  on  condi- 
tion that  the  defendant  moving  for  the  same  pay  to  , 
the  purchaser,  upon  demand,  his  costs  and  expenses 
attending  the  purchase,  which  are  hereby  fixed  and 
allowed  at  dollars,  together  with  dollars,  costs 
of  attending  this  motion. 

And  it  is  further  ordered,  that  if  the  said  condition  be 
complied  with,  the  plaintiff  be  at  liberty  to  cause  the  said 
premises  to  be  again  exposed  for  sale  by  the  same  referee, 
and  according  to  the  directions  in  the  judgment  in  this 
action  ;  and  that  the  costs  and  expenses  of  the  former 
notice  and  sale  on  the  part  of  the  plaintiff,  to  be  ascer- 
tained and  declared  by  said  referee  in  his  report  of  such 
second  sale,  be  included  in  the  costs  of  this  action,  and 
be  chargeable  with  the  other  costs  of  this  action,  upon 
the  premises  to  be  sold  ;  and  that  a  copy  of  this  order  be 
forthwith  served  upon  the  attorney  for  the  plaintiff,  and 
also  on  the  purchaser,  or  his  counsel. 


No.  50. 

Affidavit  to  move  to  substitute  successor  in 

interest  as  a  Defendant  on  death,  of 

one  of  two  or  more  Plaintiffs 

or  Defendants  in  Partition. 

New  York  Code  Civ.  Pro.  §  1588. 

\Title  of  cause. ^ 

county,  ss. 
A.  B.,  of  ,  being  duly  sworn,  says,  that  he  is  one 

of  the  plaintiffs  \^or,  the   plaintiffs  attorney]   in  the  above 
37 


578  THE     LAW    OF     FARTITION. 

entitled  action  ;  that  such  action  is  brought  for  the  par- 
tition or  sale  of  real  property  situated  in  the  county 
of  ,  and  the  place  of  trial  of  said  action  is  said 

county  of  ;  that  after  said  action  had  been  com- 

inenced,  and  \_st ate  the  condition  of  actio n\  F.  C,  one  of 
the  plaintiffs  \or,  defendants]  therein,  departed  this  life  ; 
that  M.  C.  is  the  [state  relatio7iship],  and  sole  heir-at-law 
of  said  F.  C.  \_or  set  forth  other  means  of  succession'],  and 
as  such,  has  succeeded  to  the  interest  of  said  F.  C.  in  the 
property  described  in  the  complaint,  and  sought  to  be 
partitioned  herein  ;  that  said  M.  C.  is  not  a  party  to  this 
action. 

[Jurat.']  A.  B. 


No.  51. 

Order  sulfstittiting    successor    in    interest 

as  a  Party  Defendant  in  case  of  death. 

of  one  of  two  or  more  Plaintiffs 

or  Defendants. 

New  York  Code  Civ.  Pro.  g  1 588. 

At,  etc.  [as  in  Form  No.  2^]. 

On  reading  and  filing  the  affidavit  of  A.  B., 
dated  ,18       ,  by   which   it   appears    that  F.  C, 

one  of  the  plaintiffs  [or,  defendants]  in  this  action,  has  died 
since  the  commencement  thereof,  with  proof  of  due  ser- 
vice of  notice  of  this  action  on  M.  C,  the  [heir  at  law]  of 
said  F.  C,  who  as  such  has  succeeded  to  the  interest  of 
said  F.  C,  in  the  premises  sought  to  be  partitioned 
herein,  and  on  [najne  any  other  parties  served],  and  on 
reading  [name  opposing  papers]  : 

Now,  on  motion  of  J.  G.,  for  the  plaintiff,  after  hear- 
ing, etc.,   [or,  no  one  appearing  to  oppose]: 

It  is  hereby  ordered,  that  said  M.  C.  be  and  is  hereby 
made  a  party  plaintiff  [or,  defendant]  in  this  action  [and 
that  a  supplemental  summons  issue  to  bring  in  the  said 
M.  C.  as  such  defendant]. 


FORMS.  5  79 


No.  52. 

Petition  of  G-eneral  G-aardian  of  Infant  or 
Commitee  of  Lunatic,  etc.,  for  author- 
ity to  agree  to  Partition. 

New  York  Code  Civ.  Pro.  |  1591. 

To  the  supreme  court  [or,  name  oilier  court] : 

The  petition  of  M.  B.,  of  ,  respectfully  shows  : 

That  he  is  the  general  guardian  of  C.  B.,  an  infant 
who  resides  in  the  of  ,  in  the  county 

of  ,  [or  insert  other  description  of  petitioiier\ 

That  said  C.  B.  is  the  owner,  as  joint  tenant  [or,  ten- 
ant in  common],  with  F.  D.,  of  the  real  property  situated 
in  the  of  ,  in  the  county  of  ,  which 

is  described  as  follows  :  [insert  description^ 

That  said  C.  B.  is  the  owner  of  the  one  equal  undi- 
vided one  part  of  said  property,  and  said  F.  D. 
is  the  owner  of  the  one  e,qual,  undivided  part 
thereof. 

That  it  is  proposed  to  make  a  partition  of  such  prop- 
erty, and  to  give  to  said  C.  B.,  in  severalty,  the  follow- 
ing described  lots,  pieces  or  parcels  thereof,  to  wit  : 
[describing  tJiem'i,  and  to  said  F.  D.,  in  severalty,  the 
following  described  lots,  pieces  or  parcels  thereof,  to  wit : 
[describing  them.] 

That  M.  H.,  of  ,  is  the   [state  relationship]  of 

said  infant,  etc.,  and  F.  R.,  ,  is  the  [state  relation- 

ship]  of  said  infant,  etc.,   [or  state  other  facts  7iecessary 
to  enable  the  court  to  give  proper  notice  of  the  applicatio7t]. 

That  [here  state  anything  further  proper  to  be  stated 
in  regard  to  the  rights  and  interests  of  the  ozv7iers\ 

And   your  petitioner    prays   that   authority   may    be 
given   by  this  court  to   your  petitioner  to  agree  to  the 
partition  of  said  real  property  in  the  manner  aforesaid. 
[  Verification  as  prescribed  by  the  law.]  M.  B. 


58o 


THE    LAW    OF    PARTITION. 


No.  53. 


Notice  of  Motion  for  authority  to  agree  to 
Partition. 

New  York  Code  Civ.  Pro.  §  1591. 

\Title  of  proceeding?^ 

Sir  : — Take  notice,  that  upon  the  petition,  with  a  copy 
of  which  you  are  herewith  served,  a  motion  will  be  made, 
at  a  term  of  the  court,  to  be  held  at,  etc., 

on  etc.,  at  the  opening  of  the  court,  or  as  soon  thereafter 
as  counsel  can  be  heard,  for  an  order  granting  the  prayer 
of  the  said  petitioner,  and  for  such  other  and  further  relief 
as  may  be  proper. 

Dated  ,18     , 

Yours,  etc., 

M.  N.,  Attorney  for  Petitioner. 
{Office  address^ 
To  M.  H.,  F.  R.,  etc. 


No.  54. 
Order  granting  leave  to  agree  to  Partition. 

New  York  Code  Civ.  Pro.  §  1591. 

At,  etc.  \as  in  Form  No.  2^]. 
\Title  of  proceeding \ 

On  reading  and  filing  the  petition  of  M.  B.,  as  general 
guardian  of  C.  B..  an  infant  {or,  insert  other  description  of 
petitioner\  dated  ,18     ,  with  proof  of  due  service 

of  a  copy  thereof  and  of  notice  of  this  motion  on  C.  B., 
M.  N.,  and  F.  R.,  and  on  reading  [name  opposing  papers], 
and  on  motion  of  G.  H.,  of  counsel  for  said  petitioner, 
after  hearing,  etc.  [or,  no  one  appearing  to  oppose]: 


FORMS.  581 

It  is  hereby  Ordered,  *  That  the  prayer  of  said  petition 
be,  and  is  hereby  granted,  and  that  leave  is  hereby 
granted  to  said  M.  B.,  as  such  guardian,  etc.,  to  agree  to 
the  partition  of  the  real  property  described  in  said  petition, 
in  the  manner  specified  in  said  petition,  and  to  execute 
releases  of  the  right  and  interest  of  said  infant,  etc.,  in 
and  to  that  part  of  the  property  which  falls  to  the  shares 
of  the  other  joint  tenants  [or,  tenants  in  common  thereof]. 

[Or  as  above  to  *,  and  from  tJience  as  follows  .•]  That 
it  be  referred  to  I.  M.,  of  ,  to  take  testimony  as  to 

and  report  upon  the  merits  of  such  application,  and  as  to 
whether  the  interests  of  said  C.  B.  will  be  promoted  by 
such  a  partition,  and  that  he  make  his  report  thereupon 
with  all  convenient  speed.] 


No.  bb. 

Order  to  Show  Cause  why  the  Application 
should  not  be  Granted. 

New  York  Code  Civ.  Pro.  §  1591. 

At,  etc.  \as  in  Form  No.  2f\. 
\Title  of  proceeding?^ 

On  the  annexed  petition  of.  M.  B.,  as  general  guardian 
of  C.  B.,  an  infant  {or  insert  other  description  of  peti- 
tioner'], and  on  motion  of  G.  H.,  of  counsel  for  said 
petitioner  : 

It  is  hereby  Ordered,  That  M.  H.,  of  ,  and  T.  R., 

of  ,  show  cause,  at  a  term    of  this   court, 

to   be   held,   etc.,    why  the   prayers  of  the  said  petition 
should  not  be  granted. 

And  it  is  further  ordered,  that  a  copy  of  this  order, 
together  with  a  copy  of  said  petition,  be  served  upon  said 
C.    B.,    M.  H.,   and  F.  R.,    on  or  before  the  day 

of  ,  18     , 


582  THE    LAW    OF    PARTITION. 

No.  56, 
Order  on  Return  of  Order  to  Show  Cause. 

New  York  Code  Civ.  Pro.  §  1 592. 

At,  etc.  [as  in  Form  No  .?^J. 
[  Title  of  proceeding.] 

On  reading  and  filing  the  petition,  dated  ,18     , 

of  M.  B.,  general  guardian  of  A.  B.,  an  infant  \pr  other 
description?^,  for  authority  to  agree  to  the  partition  of  the 
real  property  of  said  A.  B.,  described  in  the  said  petition, 
an  order  to  show  cause  at  this  term  why  the  prayer  of 
said  petitioner  should  not  be  granted,  with  proof  of  due 
service  upon  C.  B.,  M.  H.,  and  F.  R.,  of  a  copy  of  said 
petition  and  of  said  order,  and  on  reading  \_name  opposing 
papers] :  and  after  hearing  G.  H.,  for  said  petitioner,  and 
R.  H.,  for  [or,  no  one  appearing  to  oppose]: 

It  is  hereby  OxCsi^XQ^\concliide  as  in  Form  No.  3 -^  from  *]. 


No.  57. 

Referee's  Report  as  to  merits  of  Application 
for  authority  to  make  Partition. 

New  York  Code  Civ.  Pro.  §  1592. 

[  Title  of  proceeding.] 
To  the  court : 

I,   I.   M.,   to  whom  it  was   referred,  by  order  cf  this 
court,  dated  ,18     ,  to  take  testimony  and  report 

as  to  the  merits  of  the  application  of  M.  B.,  general  guar- 
dian of  C.  B.,  an  infant  [or  other  description],  for  author- 
ity to  agree  to  the  partition  of  the  real  property  of  said 
A.  13.,  described  in  said  petition,  do  hereby  report  : 


FORMS.  583 

That  I  have  been  attended  by  counsel  for  the  peti- 
tioner, and  for  [name  any  other  parties  atte?iding  refer- 
ence'], and  have  taken  testimony  as  to  such  application, 
and  have  come  to  the  conclusion,  after  carefully  consider- 
ing the  matter,  that  the  interests  of  the  said  C.  B.  will  be 
promoted  by  such  partition,  my  reasons  therefor  being  as 
follows  Instate  reasons'].  I  have  annexed  to  this,  my  report, 
my  minutes  of  testimony  taken  before  me,  marked 
"  Schedule  A,'^  and  which  forms  part  of  this,  my  report. 

I.  M.,  Referee. 

Dated  ,  18     . 


No.  58. 
Order  upon  Referee's  Report. 

New  York  Code  Civ.  Pro.  §  1592. 

At,  etc.  [as  in  Form  No.  2^]. 
\Title  of  proceeding.] 

On  reading  and  filing  the  report  of  J.  M.,  appointed 
referee  herein  by  an  order  of  this  court,  made  and  entered 
on  the  day  of  18     ,  with  proof  of  due  ser- 

vice of  notice  of  this  application  on  C.  B.,  M.  H.,  and  F. 
N.,  and  on  reading  [name  opposing  papers]  ;  and  after 
hearing  G.  H.,  of  counsel  for  the  petitioner,  and  R.  F., 
for  [or,  no  one  appearing  to  oppose]: 

It  is  hereby  Ordered,  the  court  being  of  the  opinion 
that  the  interests  of  C.  B.,  the  [infantj  named  in  said 
petition  in  this  proceeding,  will  be  promoted  thereby,  That 
the  said  report  be,  and  the  same  is  hereby,  in  all  things, 
confirmed,  and  that  F.  B.,  the  said  petitioner,  be,  and  he 
is  hereby  authorized  to  agree  to  the  partition  of  the  real 
property  of  said  C.  B.,  described  in  said  petition,  and,  in 
the  name  of  the  said  C.  B.,  to  execute  a  release  of  his 
right  and  interest  in  and  to  that  part  of  the  said  property, 
which  falls  to  the  share  of  F.  D.,  the  joint  tenant  [or, 
tenant  in  common,  with  said  C.  B.,  of  said  property]. 


2 84  THE    LAW    OF    PARTITION. 

No.  59. 

Notice  of  Lis  Pendens. 

[  Title  of  action. '\ 

Notice  is  hereby  given,  that  an  action  has  been  com- 
menced in  this  court  upon  a  complaint  of  the  above  named 
plaintiff  against  the  above  named  defendants,  for  the  pur- 
pose of  obtaining  a  partition  and  division  of  the  premises 
therein  described,  among  the  owners  thereof,  by  commis- 
sioners to  be  appointed  for  that  purpose,  or,  if  a  partition 
of  said  premises  cannot  be  had,  then  for  a  sale  of  the 
same  under  the  direction  of  this  court,  and  for  a  division 
of  the  proceeds  of  such  sale  among  such  owners,  according 
to  their  several  and  respective  rights  and  interests  therein. 
The  said  premises  are  described  as  follows:  {insert 
description^ 

Clerk  will  index  the  names  of 

,  Plaintiff's  Attorney. 


No.  60. 

Notice  which  may  he  affixed  to  the  Sum- 
mons of  No  Personal  Claim. 

{Title  of  action.'] 

To  the  above  named  defendants  : 

Take  notice,  that  the  summons  served  upon  you  in 
this  action  is  issued  upon  a  complaint  praying  the  parti- 
tion and  division  of  the  premises  therein  described,  among 
the  owners  thereof,  by  commissioners  to  be  appointed  for 
that  purpose,  or  for  a  sale  thereof,  under  the  direction  of 
this  court,  and  for  a  division  of  the  proceeds  of  such  sale 
among  such  owners,  according  to  their  several  and 
respective  rights  and  interests  therein. 

You  will  further  take  notice,  that  no  personal  claim  is 


FORMS. 


5S5 


made  against  you,  or  any  of  the  defendants.  The  premises 
sought  to  be  divided  are  described  in  the  said  com- 
plaint, as  follows  :   [insert  description.^ 

,  Plaintiff's  Attorney. 


No.  61. 

Deed  of  Refreee  in  Partition. 

This  indenture,  made  the  day   of  ,    in 

the  year  one  thousand  eight  hundred  and  ,  between 

B.   B.,   a  referee,  appointed    by  the  court  of  the 

State  of  ,  dwelling  in  the  city  of  ,  of  the 

first  part,  and  N.  B.,  of  the  city  and  county  of  ,  of 

the  second  part,  witnesseth  :  Whereas,  at  a  term 

of  the  court,    held    at    the  in    the    city 

of  on  the  day  of  ,  18     ,  before   his 

Honor  ,  one  of  the  justices  of  said  court,  it  was 

among  other  things  ordered,  adjudged  and  decreed,  by 
the  said  court,  in  a  certain  action  then  depending  in  the  said 
court,  between  A.  M.,  plaintiff,  and  C.  M.,  D.  M.  and  E. 
M.,  defendants  ;  that  all  and  singular  the  premises  men- 
tioned and  set  forth  or  referred  to  in  the  complaint  in 
said  action,  or  so  much  thereof  as  are  hereinafter  particu- 
larly described,  be  sold  by  or  under  the  direction  of  B.  B., 
referee  appointed  by  said  court,  at  public  auction,  in  the 
county  where  said  premises  are  situated  ;  that  the  said 
referee  first  give  public  notice  of  the  time  and  place  of 
such  sale,  with  a  brief  description  of  the  said  premises, 
according  to  the  practice  of  the  said  court.  And,  whereas, 
I,  the  said  referee  and  party  of  the  first  part  to  these 
presents,  in  pursuance  of  the  order  and  decree  of  the  said 
court,  did  on  the  day  of  the  date  of  these  presents,  sell  at 
public  auction,   at  the  of  the  in  the  city 

of  ,    the    said  premises    hereinafter    particularly 


586  THE    LAW    OF    PARTITION. 

described,  having  first  given  public  notice  of  the  time  and 
place  of  such  sale,  with  a  brief  description  of  the  said 
premises,  agreeably  to  the  order  aforesaid,  at  which  time 
and  place  the  said  premises  were  struck  off  to  and  pur- 
chased by  the  said  party  of  the  second  part  to  these 
presents,  for  the  sum  of  dollars  ;  that  being  the 

highest  sum  bidden  for  the  same. 

Now,  therefore,  this  indenture  witnesseth  :  that  the 
seid  party  of  the  first  part,  in  order  to  carry  into  effect  the 
said  sale  so  made  as  aforesaid,  in  pursuance  of  the  decree 
of  the  said  court  ;  and  also  by  virtue  of  the  statute  in  such 
case  made  and  provided,  and  in  consideration  of  the 
premises,  and  of  the  sum  of  dollars,  paid  by  the 

said  party  of  the  second  part  to  these  presents,  to  me  the 
said  referee,  as  aforesaid,  the  receipt  whereof  I  do  hereby 
acknowledge,  have  granted,  bargained  and  sold,  conveyed 
and  confirmed,  and  by  these  presents  do  grant,  bargain 
and  sell,  convey  and  confirm  unto  the  said  party  of  the 
second  part,  and  to  his  heirs  and  assigns  forever.  All 
[insei't  description  of  tJie  premises,']  together  with  all  and 
singular  the  rights,  titles,  privileges,  members,  heredita- 
ments and  appurtenances  to  the  same  belonging,  or  in 
anywise  appertaining.  To  have  and  to  hold  all  and 
singular  the  said  premises  above  mentioned  and 
described,  and  hereby  granted  and  conveyed,  or  intended 
so  to  be,  unto  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  to  the  only  proper  use,  benefit  and  behoof  of 
the  said  party  of  the  second  part,  his  heirs  and  assigns 
forever. 

In  witness  whereof,  I,  B.  B.,  the  said  referee,  have 
hereunto  set  my  hand  and  seal,  the,  day  and  year  first 
above  mentioned. 

[L.  s.]         B.  B.,  Referee. 

\Add  acknowledg'ment!\ 


FORMS.  587 

No.  63. 

Referee's  Deed  in  Partition. 

This   indenture,  made    this  day   of  ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and 
eighty  ,  between  referees  in  the  action 

hereinafter  mentioned,  of  the  first  part,  and  , 

of  the  second  part.  Whereas,  at  a  special  term  of 
the  court  of  held  at  ,  on  the 

day    of  ,  one    thousand    eight    hundred   and 

eighty  it   was,  among   other  things,  ordered, 

adjudged  and  decreed  by  the  said  court,  in  a  certain 
action  then  pending  in  said  court,  between  That 

all  and  singular  the  premises  mentioned  in  the  complaint 
in  said  action,  and  hereinafter  described,  be  sold  at  pub- 
lic auction,  according  to  the  course  and  practice  of  said 
court,  by  or  under  the  direction  of  the  said  who 

was  appointed  a  referee  in  said  action,  and  to  whom  it 
was  referred  by  the  said  order  and  judgment  of  the  said 
court,  among  other  things  to  make  such  sale  ;  that  the 
said  sale  be  made  in  the  county  where  the  said  premises, 
or  the  greater  part  thereof,  are  situated;  that  the  referee 
give  public  notice  of  the  time  and  place  of  such  sale, 
according  to  law  and  the  rules  and  practice  of  said  court, 
and  that  any  of  the  parties  in  said  action  might  become  a 
purchaser  or  purchasers  on  such  sale;  that  the  said 
referee  after  said  sale,  make  report  thereof  to  said 
court,  and  after  his  report  of  sale  shall  have  been  duly 
confirmed,  then,  that  he  execute  to  the  purchaser  or  pur- 
chasers of  the  said  premises,  or  such  part  or  parts  thereof 
as  should  be  so  sold,  a  good  and  sufficient  deed  or  deeds 
of  conveyance  for  the  same. 

And    whereas,    the   said  referee,   in   pursuance  of  the 
order  and  judgment  of  the  said  court,  did,  on  the  day 

of  ,  one  thousand  eight  hundred  and  eighty         ,  sell 

at  public    action,  at  ,  the  premises  in  the  said 


588  THE    LAW    OF    PARTITION. 

order  and  judgment  mentioned,  due  notice  of  the  time 
and  place  of  such  sale  being  first  given,  agreeably  to  the 
said  order;  at  which  sale  the  premises  hereinafter 
described,  were  struck  off  to  the  said  party  of  the  second 
part,  for  the  sum  of  dollars,  that  being  the  highest  sum 
bidden  for  the  same,  and  the  said  referee's  report  of  said 
sale  having  been  duly  confirmed. 

Now  this  indenture  witnesseth,  that  the  said  referee, 
the  party  of  the  first  .part  to  these  presents,  in  order  to 
carry  into  effect  the  sale  so  made  by  him  as  aforesaid,  in 
pursance  of  the  order  and  judgment  of  said  court,  and  in 
conformity  to  the  statute  in  such  case  made  and  provided, 
and  also  in  consideration  of  the  premises,  and  of  the  said 
sum  of  money  so  bidden  as  aforesaid,  being  first  duly  paid 
by  the  said  party  of  the  second  part,  the  receipt  whereof 
is  hereby  acknowledged,  hath  bargained  and  sold,  and  by 
these  presents  doth  grant  and  convey  unto  the  said  party 
of  the  second  part.     All 

To  have  and  to  hold,  all  and  singular  the  premises 
above  mentioned  and  described,  and  hereby  conveyed,  or 
intended  so  to  be,  unto  the  said  party  of  the  second 
part  and  assigns  to  their  only  proper 

use,  benefit  and  behoof,  forever. 

In  witness  whereof.  The  said  party  of  the  first  part, 
i-eferee  as  aforesaid,  hath  hereunto  set  his  hand  and  seal, 
the  day  and  year  first  above  written. 


Sealed  and  delivered  in  presence  ol 


State  of  ,  county  of  ,  ss.: 

On  this  day  of  ,  in  the  year  one  thousand 

eight  hundred  and  eighty  ,  before  me,  the  subscriber, 

personally   appeared  to  me  known    to  be    the 

same  person     described  in  and  who  executed  the  within 
instrument,  and  acknowledged  that     he     executed 

the  same. 


INDEX. 


Page 
ABATEMENT— 

New  York  law  against 371 

action  continues  in  case  of  death  of  party 3S9-391 

after  judgment 390 

inchoate  right  of  dower 392 

death  of  defendant  before  answer 393 

application  to  continue 394 

new  parties 394 

interests  in  interlocutory  judgment 395 

ACCOUNTING— 

may  be  had  between  tenants  in  common ....  14 

liability  under  New  York  statutes 14 

demand  in  complaint i57 

when  defendant  should  not  account 160 

remedy  for  rents 160-385 

widow  entitled  to 303 

for  purpose  of  equality 377 

on  default 3^7 

ACTIONS— 

when  two  cannot  be  consolidated 126 

what  necessary  to  maintain I75 

ADVANCEMENTS— 

must  be  brought  in  for  computation 194 

question  of  on  distribution 3/2 

ADVANCES— 

to  infant  child 121 

[589] 


590  INDEX. 

Page 
ADVERSE  POSSESSION— 

when  entry  not 58 

Tvhat  is 64-76 

title  must  be  proved ...    .  65 

holding  under  assessment  lease ^^    66 

no  rule  preventing  hostile  title 66 

claim  under  executory  contract 67 

possession  without  right 67 

legal  definition  of 67 

there  must  be  title  somewhere 68 

in  Virginia 69 

doctrine  of,  must  be  clear 69 

negligence 7" 

must  be  undercolor  of  title 64,  71,  74 

a  written  conveyance  will  support 71 

possession  for  twenty-seven  years 72 

if  claim  is  under  conveyance 72 

purchaser 73-76 

presumption  in  favor  of  possession 75 

constructive  adverse  possession 76 

rule  in  Connecticut n 

when  color  of  title  not  essential n 

conveyance  by  attorney 78 

question  of  good  faith,  color  of  title 78 

a  decree  in  partition  or  foreclosure 79 

by  husband  of  life  tenant 79 

what  is  not 80 

mere  occupancy 81 

entry  once  a  year  for  twenty  years 81 

who  may  acquire 82 

under  a  conveyance  from  lessees 83 

action  by  purchaser 83 

who  cannot  acquire  partition 84a 

against  whom  acquired 84a 

must  be  continuous 84a 

champerty 85c 

peaceable  possession  of  one  tenant 87 


INDEX.  591 

Page 
ADVERSE  POSSESSION— Continued 

mortgage  by  one  not  conclusive 88 

as  a  bar 449-452 

ALABAMA— 

claim  for  improvements 193 

ALLODIAL  TENURES— 

all  lands  in  New  York  are* 5 id 

AMENDMENTS— 

irregularities 182 

may  add  names  of  parties 184 

ANSWER— 

of  infants 115 

infancy  must  be  pleaded 123 

admitting  complaint 166 

what  is  pleading 167 

same  rule  as  in  other  actions 168 

what  it  must  contain 168 

general  denial 160 

conjunctive  form  of  denial 171 

may  put  question  in  issue  between  defendants 171 

the  controverting  of  titles 172 

when  pleading  sufficient i73 

allegation  of  ownership i74 

the  question  of  rents i75 

what  necessary  to  maintain  action    175 

when  defendant  sets  up  exclusive  title 176 

averments  of  possession 176 

claiming  title  to  whole  premises 176 

when  argumentative 1 77 

averment  of  insanity  in  Vermont i?7 

default,  when  order  for  partition  decreed \  177 

general  rules  as  to ^11 

a  general  traverse '78 

reservations  by  defendant 1 78 

must  be  full  and  perfect 1 78 

another  action  pending 182 


592  INDEX. 

Page 
APPEAL— 

none,  when  action  submitted  without  answer i75 

equality  of  partition 3^° 

who  may 494 

is  it  in  the  nature  of  a  new  action 495 

motion  for  new  trial 49^ 

interlocutory  judgment 497-5o6 

sale  by  trustee 49^ 

liberality  in  equity 499 

meaning  of  "  final  judgment  " 5oo 

submission 5°^ 

receivers 5°^ 

must  be  from  final  decree 502 

discontinuance 5o3 

application  to  open  judgment 5^4 

construction  of  statute 5o5 

court  of  equity 5o6 

costs 507 

ASSIGNEES— 

may  maintain  partition 28 

BILL— 

partition^  nature  of 3^0 

See  Pleading  ;  Complaint  ;  Petition. 
BOND— 

gardian  must  give 116 

filing  after  judgment n? 

BUILDINGS— 

part  of  realty 160 

cestui  que  trust 99 

cham  perty ^5^ 

See  Trustee. 
CODE  OF  CIVIL  PROCEDURE  OF  NEW  YORK— 

§  1 532  who  may  partition 23 

451  applies  to  partition 32 

1 533  relative  to  remaindermen 34 

1538  parties ^°S 

451  general  in  its  terms 106 


INDEX.  593 

Page 
CODE  OF  CIVIL  PROCEDURE  OF  NEW  YORK— Continued 

§   1539  parties io7 

452  old  code 109 

1 540  wlio  may  be  parties 1 09 

1 541  unknown  owners 109 

1534  infants 112 

1 537  apparent  devise 141 

521  judgment  as  between  defendants 171 

1543  issues  between  defendants 172: 

970  trial  of  issue 1 80, 

1545  default  198 

1546  interlocutory  judgment 204 

1547  "  "  2IQ> 

1548  shares  of  two  or  more 21  ;3^ 

1549  commissioners,  appointment  of 214 

1550  "  oath  of 220, 

1151  "  dutyof 221 

1552  "  "       224 

2553  right  of  dower 232 

1554  commissioners,  meeting  of 223 

1555  "  fees  of 234 

3299  surveyor 235 

1 556  commissioner,  report  of '  236 

1557  final  judgment 244 

1558  "  '*  249 

1559  "  "  255 

1560  commissioners,  report  of 258, 

1 561  reference  to  ascertain  liens 265, 

1562  reference  to  ascertain  liens 271 

1563  liens  set  forth  in  pleadings 274 

1 564  money  paid  into  court 275 

1565  unsatisfied  liens 277 

1566  liens  upon  undivided  share 277 

1567  existing  right  of  dower 291 

1 568  sale  of  right  of  dower 292 

1 569  gross  sum  in  lieu  of  dower 296 

1 570  inchoate  right  of  dower 298 


594  INDEX. 

Page 
CODE  OF  CIVIL  PROCEDURE  OF  NEW  YORK— Continued 
§   1 571  release  of  right  of  dower 299 

1 572  unknown  owners 308 

1 573  terms  of  sale ^15 

1574  "      "     "     318 

1575  mortgages 318 

1 576  report  of  sale 32 1 

1676  judicial  sale 337 

1677  "        "     328 

1678  "        "       329 

1679  commissioner  making  sale 332 

1577  final  judgment 336 

1 578  "  "         bar 339 

1 579  costs  and  fees 344 

1 580  proceeds • 359 

1581  "         364 

1583  "         368 

1584  "         368 

1585  "         370 

1586  "         371 

1 587  equality  of  partition 373 

1 589  rents  and  profits 384 

1 588  abatement 39° 

1 590  infant,  lunatic,  etc 4^3 

1 591  infants,  etc.,  application  for 403 

1 592  infants,  etc. ,  application  for 404 

1 593  releases  4^4 

1594  people 412 

1 595  copy  of  judgment-roll 4^3 

1 242  sale 424 

1243  security 425 

1244  granting  clause 425 

COLOR  OF  TITLE— 

apparent  title 479 

paper  purporting  to  convey 479 

void  title 480 

adverse  possession  under 481 


INDEX.  595 

COLOR  OF  TITLE— Continued  ^""^^ 

deed  not  essential 481 

an  intruder 482 

mixed  possession 483 

eviction 483 

prior  possession 484 

mortgagee's  title 484 

purchase  at  sheriff's  sale 485 

purchaser  at  tax  sale 485 

actual  possession 485 

deed  from  one  not  in  possession 486 

pleadings 487 

See  Adverse  Possession  ;  Foreclosure  ;  Partition. 

COMMISSIONERS— 

oath  of 220 

duty 220 

report  of 221,  230,  233,  243 

notice  of  proceedings 222 

are  to  exercise  discretion 222 

parties  entitled  to  be  heard 223 

they  must  examine  premises ' 223 

must  do  justice  to  all   224 

cannot  partition  part  and  leave  part 224 

partition  in  place  of  sale 225 

partitioning  land  under  water 225 

doctrine  of  acquiescence 226 

number  of,  in  New  York 228 

division  in  accordance  with  interlocutory  judgment 228 

may  employ  surveyor 229 

manner  of  assignment  of  parcels 230,  231 

widow's  dower 232 

all  must  meet 233 

expense  of 234 

fees  determined  by  the  court 234 

report  must  be  brought  into  court 236 

confirmation  of  report 236 

motion  to  confirm  or  set  aside 246 


596  INDEX. 

Page 

COMMITTEE— 
See  Lunatic,  &c. 

COMMON  L.AW— 

writ  at  common  law  in  Massachusetts  and  Maine 26 

COMPLAINT— 

when  it  asks  for  other  or  further  relief 102 

prayer  for  relief 136 

apparent  devise,  statement  of 141 

what  it  should  be 150,  152 

common-law  writ 152 

in  Massachusetts  and  Maine 152 

in  Connecticut,  Georgia,  Illinois,  New  Jersey  and  New 

York 153 

set  forth  rights  and  titles 156 

bill  in  equity,  disputed  claims 157 

proceed ings  regulated  by  statute 157 

demand  for  accounting 157 

proceeding  iti  rem 158 

practice  and  custom 1 58 

errors  in  statements 1 59 

not  bad  for  misjoinder,  when 1 59 

rents  and  profits 160 

buildings  on  premises,  how  set  up 160 

when  defendants  are  infants 161 

as  to  dower 161 

notice  of  pendency 162 

error  in  statement 163 

New  York  Rule  65 163 

"      66 164 

averments  of  title 164 

unknown  owners 311 

See  Petition. 

CONNECTICUT— 

petition  to  court  at  law 26,  153 

failure  to  take  possession 53 

adverse  possession 11,^^ 


INDEX.  597 

Page 
CONSTRUCTIVE  POSSESSION— 

what  is 54 

mere  possession 54 

doctrine  in  Vermont 55 

See  Possession, 

CONVEYANCE— 

adverse  possession  under 72 

enjoyment  of  land  under  grant 73 

COPARCENERS— 

See  Parceners. 

COSTS— 

when  may  be  charged  to  plaintiff 163 

final  judgment  must  award 255 

attorney's  lien  for  disbursements 256 

under  New  York  Code 341 

to  unknown  defendants 342 

tenants  in  common  of  part  of  the  land 342 

when  party  cannot  be  charged  with 342 

parties  in  default 343 

in  final  judgment 343 

protection  of  innocent  parties 344 

investment  of  proceeds 344 

assignment  of  portions 345 

special  cases 346 

against  executor  or  administrator 347 

stenographer's  fees 347 

referee's 348.  354 

additional  allowance 349-35'.  55^ 

discretion  of  the  court 350 

mistake 35° 

recovery  set  aside 350 

disbursements 352 

taxation  of 353 

when  defendants  have  fto  interest 354 

contests 354 

security  for     355 

when  paid 356 


598  INDEX. 

Page 
CO-TENANCY— 

technical  joint  tenancy  abolished 8 

American  und  English  laws,  comparison  of .  9 

American  rule 9 

liability  to  co-tenant 10 

cannot  oust  fellow  co-tenant 12 

husband  and  wife  may  be  co-tenants 14 

corporations  cannot  be  joint  tenants 19 

COURT— 

jurisdiction 124-138 

county  court 13' 

court  of  admiralty 132 

court  of  appeals 1 33 

court  of  chancery 1 33,  1 34 

probate  in  Connecticut 153 

jurisdiction  of  supreme  court 157 

supreme  cannot  consolidate,  when 1 59 

See  Jurisdiction. 

DECREE— 

See  Judgment. 

DEED— 

See  Conveyance. 

DEFAULT— 

when  order  for  partition  made I77 

DEFENSE— 

when  no  right  to  possession  is  67 

idiocy  and  lunacy 376 

statute  of  limitations 447 

DELAWARE— 

failure  to  take  possession 53 

DEVISE— 

how  affects  partition 1 39,  141 

apparent 141 

statements  in  complaint 142 

statutory  rule 143 

Stewart  case 143 

under  act  of  1853 144 


INDEX.  599 

Page 
DEVISE— Continued 

subsequent  action 145 

next  of  kin's  hostile  claim 146 

jurisdiction  of  court  over  trusts 146 

survivorship  and  time  of  death 147 

vested  estate  under  will 148 

executor  with  power  to  sell 148 

presumption  as  to  purchaser 149 

DISTRIBUTION  OF  PROCEEDS— 
See  Proceeds. 

DOWER— 

none  in  joint  tenancy 21,   179 

where  right  of  survivorship  is  abolished 21 

wife  having  inchoate  right  as  party, , 31 

purchaser  takes  subject  to 94 

cannot  be  taken  from  wife 95 

grantee  of  widow's  right 104 

when  attaches 161 

reversion  in,  assigned 162 

when  assigned 1 62 

widow  takes  one-third  in  Indiana 164 

general  law  protects 245 

widow  becomes  tenant  in  common 280-283 

where  lands  are  held  in  common 280 

husband  cannot  change  dower 281 

dower  attaches  to  husband's  share 281 

involuntary  partition 781,  282,  306 

inchoate  right 284,  287 

paramout  to  claim  of  heirs 285,  286 

should  be  assigned 286 

rule  in  Indiana 287 

waiver 288 

estate  in  remainder 288 

must  be  equitably  adjusted 289 

release 289 

widow  must  be  party 289 

sale  of  entire  dower 290 


600  INDEX. 

Page 
DOWER— Continued 

money  awarded  to  wife  need  not  be  paid  into  court 291 

right  of  dower  passes,  if  decree  so  directs 292 

jurisdiction  of  chancery 293 

dower  similar  to  prior  lien 294,  295 

gross  sum  in  lieu 296 

infants  defendants 297 

widow  havmg  dower  in  part 297 

value  of  inchoate 298 

married  woman  may  release  to  husband 298 

dower  in  equitable  estate 299 

in  equity  of  redemption 300 

parol  partition,  effect  on  dower 300 

woman  living  apart  from  her  husband 301 

must  be  seizin  of  husband 301 

reversion  in  fee 302 

rents  and  profits,  account  for 303 

mortgage  for,  but  collateral 303 

possession  of  widow,  possession  of  heir 303 

consummation  of  dower  304 

difference  between  inchoate  dower  and  dower 304 

dower  is  an  absolute  right 3°$ 

assignment  of 3°5 

wife,  endowed  when 306 

value  of  inchoate  right 3^2 

to  be  presented  to  court 3^3 

DRUNKARD— 
See  Lunatic. 

EASEMENT— 

to  flow  water » 374 

EQUALITY— 

New  York  statutes 373 

shares  may  not  be  equal 373 

easement  to  flow  water 374 

improvements 375 

property  of  lunatic 375 

school  district 37^ 


INDEX.  60 1 

Page 
EQUALITY— Continued 

acts  of  idiot  or  lunatic 376 

conveyance  to  third  person 377 

account  and  compensation 377 

mortgages 377 

one  share  may  be  set-off 37^ 

agreements  between  co-owners 37^ 

rights  of  children 37^ 

when  sale  is  decreed 379 

court  to  adjust  rights 379 

referee  determines  shares 380 

appeal 3^° 

partition  bill  in  equity 3^° 

committee  in  New  Hampshire 3^° 

improvements 3^^ 

-     receiving  money,  estoppel 3^2 

administrator  entitled  to  share,  when 3S2 

court  to  determine  whether  there  be  sale 383 

inchoate  right  of  dower 3^3 

protection  of  purchaser 3^4 

adjustments  of  rights 3^4 

action  for  rents 3^5 

improvements 3^5 

death  of  tenant 3^5 

default  of  defendants 3^6 

trust  property 3^6 

community  property 3^6,  387 

incumbrance  upon  inheritance 387 

partition,  object  of 3^7 

EQUITY,  court  of— 

may  supply  omissions  of  the  statute 25 

does  not  act  wholly  ministerially 217 

ERROR— 

See  Amendments. 

ESCHEAT— 

rule  in  different  States 4'° 

English  rule 4' ^ 


6o2  INDEX. 

Page 
ESCHEAT— Continued 

New  York  rule 412 

feudal  tenures 413 

ESTOPPEL— 

receiving  money 3^2 

EXECUTORS— 

as  parties 105 

power  to  sell 148 

FEES— 

See  Costs. 

FEUDAL  TENURES— 

abolished 41 3 

co-tenancy  of  a  State 413 

FORECLOSURE— 

decree  may  become  color  of  title 79 

FUTURE  CONTINGENT  INTEREST— 

owners  as  parties 93 

GEORGIA— 

petition  in  courts  of  law 26 

failure  to  take  possession 53 

petition  for  partition 1 53 

GRANT— 

See  Conveyance. 

GUARDIAN— 

of  female  possession 60 

ad  h'letn  must  be  appointed 114 

infant  over  fourteen  may  apply  for 114 

petition  for,  must  be  verified 115 

interest  must  not  be  adverse  to  infant 116-121 

must  give  bond 1 1 7 

service  of  summons  on ii7 

infant  must  appear  by 1 18-122 

father  as  guardian  ad liiem 215 

conveyance  by  party  of  unsound  mind 396 

general  finding  of  insanity 397 

co-tenant  lunatic 39^ 

court  of  chancery  jurisdiction 399 


INDEX.  603 

Page 
GUARDIAN— Continued 

application  of  minor  for  leave  to  partition 400 

duty  of  guardian 401 

deed  of  guardian.. 401 

application  to  partition 402 

practice  in  New  York  State 403,  404 

relation  of  parent  and  child  rebuts  contract 405 

landlord  and  tenant 405 

no  power  to  convey 405 

infants  must  have  guardians 406 

must  appear  in  court 407 

importance  of  appointment 407 

duty  of  committee 408 

HABITUAL  DRUNKARD— 
See  Lunatic,  etc. 

HEIRS— 

when  decree  of  partition  not  granted  among 44 

HUSBAND  AND  WIFE  — 

a  deed  by  husband  of  life  tenant,  color  of  title 79 

husband  dying  pending  action 94 

widow  of  tenant  in  common  proper  party 102 

estate  during  joint  lives 120 

IDIOT— 

See  Lunatic. 

ILLINOIS— 

petition  to  courts  at  law 26, 153 

IMPROVEMENTS— 

when  one  in  possession  entitled  to 59 

See  Equality. 
INCHOATE  RIGHT  OF  DOWER— 

See  Dower. 
INCUMBRANCE— 

See  Judgment;  Mortgages;  Equality;  and  Distribution. 

INDIANA— 

widow  takes  one-third  interest  of  children 164 


604  INDEX. 

Pag 
INFANT— 

when  will  forbids  partition 39 

when  cannot  partition 45 

as  party 94 

law  must  protect 1 1 1 

liability  on  contracts 1 1 1 

proceeds  of  infant's  real  estate in 

rights  as  tenant  in  common 112 

courts  not  in  favor  of  selling  infant's  property 112 

petition  for  partition 113 

guardian  ad  litem  must  be  appointed 114 

infant  over  fourteen  may  apply  for  guardian 114 

defendant  married  woman 115 

petition  for  guardian  must  be  verified 115 

answer 115 

guardian's  intetest  must  not  be  adverse 116-121 

guardian's  bond 116 

service  on  guardian 117 

must  defend  by  guardian 1 18-122 

cannot  deprive  others  of  right 120 

estate  during  joint  lives  of  husband  and  wife 120 

advances 121 

cannot  waive  guardianship 122 

appearing  by  attorney  and  not  by  guardian 1 22 

infancy  must  be  specially  pleaded 123 

when  defendant  must  prove  infancy 1 23 

jurisdiction  of  court 134 

infant  grandchild 145 

infant  defendants,  what  complaint  should  state 161 

infant  not  served  with  process 261 

court  must  protect 430 

See  Guardian. 

INTERLOCUTORY  JUDGMENT— 
See  Judgment. 

ISSUES— 

See  Trial  of  Issues. 


INDEX.  605 

JOINT   TENANTS— 

technical  abolished 8,  17,  56 

what  are 17 

policy  of  American  law  as  to  survivorship 17 

presumption  in  United  States 17 

when  a  necessity 17 

at  common  law 19 

corporations  cannot  hold  as 19 

each  entitled  to  his  share  of  the  rents  and  profits 19 

co-trustees  joint  tenants 19 

all  must  join  in  action  for  recovery  of  land 20 

common-law  rule  as  to  trespass 20 

an  alien  and  a  citizen  may  be 20 

one  cannot  incumber  as  against  the  other 20 

Connecticut  rule 21 

no  dower  in  common  law 21 

infant  joint  tenants 107-123 

JUDGMENT   CREDITORS— 

cannot  be  compelled  to  join  in  partition 46 

JUDGMENT— 

of  foreign  court 124 

when  not  valid 1 37 

when  ought  not  to  be  rendered 1 76 

former  judgment  as  evidence 1 94 

what  is  interlocutory 202 

court  to  determine  division 203 

may  make  special  directions 203 

sec.  1 546  N.  Y.  Code  Civ.  Pro 204 

when  all  the  parties  are  adults 204 

when  necessary  parties  are  not  before  the  court 204 

cestui  que  trust 205 

taxes 205 

interest  of  feme  covert 205 

interlocutory  must  set  forth  estate 206 

interlocutory  not  final 207 

lands  held  by  partners 208 

not  a  bar  to  foreclosure 208 


6o6  INDEX. 

Page 

JUDGMENT— Continued 

binding  upon  all  parties 209-247 

sec.  1547  N.  Y.  Code  Civ.  Pro 210 

undetermined  shares 211 

severance  of  action 211 

tenancies  for  life  and  remainder 211 

share  of  one  may  be  set-oflf 212 

two  or  more  shares  in  common 213 

assignment  to  one  charged  with  servitude 213 

N.  Y.  Revised  Statutes 214 

father  as  guardian  ad  litem 215 

decree  is  public  record 215 

cannot  be  attacked  collaterally 215 

partition  by  probate  court 216 

decree  not  made  prejudicial  to  infants 216 

publication  of  notice  for  unknow'n 216 

rule  in  North  Carolina 217 

court,  not  ministerial 217 

rents  and  profits 218 

action  by  partner 218 

lien  of  mortgage 219 

release  by  mortgagor 219 

on  report  of  commissioners 243 

reservation  of  rights 243 

upon  whom  binding 244 

dower  protected 245 

when  sale  ordered 245 

motion  to  set  aside  report 246 

partition  consummated  by  entry  of  judgment 246 

subsequent  conveyances 246 

judgment  as  a  bar 247 

on  non-appearance  of  defendant 247 

judgment  conclusive  as  to  whom 248 

rights  of  all  should  be  settled 249 

possession  should  be  allotted 249 

the  withholding  of  possession 249 

not  conclusive  as  to  title 250 


INDEX.  607 

Page 
JUDGMENT— Continued 

question  of  possession  and  issue 250 

title  an  issue  in  New  York 251 

binding  on  questions  at  issue 252 

compulsory  partition 253 

may  be  corrected 253 

invalid  and  imperfect  partition 254 

decree  conclusive 254 

must  award  costs 255 

execution  for  costs 255 

attorney's  lien  for  disbursements  256 

sale  of  premises 257-260 

judgment  of  review 261 

order  for  sale  on  pleadings 261 

rule  in  Louisiana 262 

right  of  plaintiff  to  have  sale 262 

what  shares  set-ofi  after  conveyance 263 

adverse  possession 264 

unknown  owners 309 

final  judgment  confirming  sale 335,  340 

purchaser's  title 336,  337 

omission 337 

infants 338 

specific  liens 338 

final  judgment  a  bar 338 

report  of  sale 339 

conveyances 340 

confirmation  of  sale 340 

exemplified  copy 413 

lands  located  in  two  or  more  counties 413 

review  of  judgment 429 

JURISDICTION— 

how  given 1 24 

by  appearance 1 24 

judgment  of  foreign  court 1 24 

under  Federal  Constitution 125 

is  a  question  of  fact 125 


6o8  INDEX. 

Page 
JURISDICTION— Continued 

court  on  limited  jurisdiction 125 

when  objection  to  jurisdiction  proper 126 

supreme  court  has  general  jurisdiction 126 

when  two  actions  cannot  be  consolidated 127,  128,  133 

effect  on  judgment 128 

in  Massachusetts 1 29 

of  probate  judge 1 29 

county  court 131 

statute  constitutional 131 

equity  jurisdiction 132,  i89 

jury  trial 1 33 

court  of  appeals I33 

court  of  chancery 133,  1 34 

purpose  of  feigned  issue 1 34 

when  verdict  cannot  be  reserved 1 34 

special  term  calendar 134 

as  to  infant's  property 135 

amendment  when 135 

parties  bound  by  decree 136 

prayer  for  relief 1 36 

suspicious  title 1 37 

when  judgment  not  valid 1 37 

over  trusts 146 

JURY— 

jury  trial 1 32 

See  Jurisdiction. 

JURY  TRIAL— 

See  Trial  of  Issues. 

KENTUCKY— 

lands  of  married  women 316 

LACHES—  , 

on  review 434< 

party  must  bear  h  is  own 451 

LEASES— 

partition  of 28 

with  agreement  for  possession 61 


INDEX.  609 

Page 
LEASES — Continued 

lessees  as  parties loi 

limitation 447 

LIENS— 

reference  to  take  proof 265 

right  of  incumbrancer  not  affected 266 

sale  subject  to  266 

court  must  protect  purchaser 267 

judgment  creditors  as  parties 267,  268 

against  co-tenant's  interest 268 

court  must  have  notice  of 268 

search  of  clerk  for  liens 269-272 

when  purchaser  cannot  object 270 

reference  to  ascertain 269-270,  276 

duty  of  referee 2701 

general  liens 271 

sale  of  one  co-tenant's  interest 272: 

advertisement 271-273, 

appearing  by  the  pleadings 274 

when  amount  ascertained . .   274 

application  for  money 274 

service  of  notice 275, 

court  controls  funds 276, 

expenses 276. 

report 277,  278 

claiming  adversely 294. 

See  Mortgage. 

LIMITATIONS  OF  ACTIONS— 

does  not  bar  relief,  when 193; 

New  York  rule 442 

as  to  People 443,  445^ 

acquiescence 444 

doctrine  relative  to  grantee 444 

right  of  possession 445, 

twenty  and  ten  years 446 

conveyance  from  third  person 446 

is  a  defense 447 

39 


6lO  INDEX. 

Page 
LIMITATIONS  OF  ACTIONS— Continued 

lease  from  co-tenant 447 

taxes 448 

as  a  bar 448 

time  fixed  by  statute 449 

laches ^!49.  45 1 

adverse  possession 450.  451 

against  and  in  favor  of  co-tenants 452 

when  It  commences  to  run 453 

element  of  title  is  possession 454 

policy  of  the  lav/ 455 

seizin  can  be  but  one 455 

computation  of  time 457 

statute  arises  from  prescription 456 

LIS  PENDENS— 

when  to  file 162 

LUNATICS,  IDIOTS,  &c. 

must  be  party  with  committee 31 

as  party 94.  1 04 

cannot  deprive  others  of  right  to  partition 1 20 

insanity,  how  pleaded  in  Vermont 177 

share  on  distribution 365 

equality  as  to 375 

defense  as  to  wrongful  acts 376 

See  Guardians. 

LOUISIANA— 

adverse  possession 79 

MAINE— 

writ  at  common  law 26,  1 52 

improvements  by  co-tenant 1 92 

MARYLAND— 

doctrine  of  possession 53 

rule  as  to  infant  appearing  by  attorney 122 

MASSACHUSETTS— 

writ  at  common  law 26 

must  have  seizin  in  fact 43 

failure  to  take  possession 53 


INDEX.  6ll 

Page 
MASSACHUSETTS— Continued 

jurisdiction 129 

common-law  writ 152 

execution  of  mortgage i9' 

MISSISSIPPI— 

parties ^°5 

dower 3°^ 

unknowii  owners. . 31° 

MORTGAGE— 

by  one  not  evidence  of  ouster 88 

mortgagee  as  party 91 

for  widow's  dower 3^3 

See  Mortgagee;  Mortgagor;  Lien. 

MORTGAGEE— 

when  partition  may  be  had  by  mortgagor 191 

partition  not  bar  to  foreclosure 205 

owelty  subject  to  lien  of 219 

See  Liens. 

MORTGAGOR— 

in  possession  before  entry 19^ 

See  Liens. 
NAKED  POSSESSION— 

See  Possession 61 

NEW  HAMPSHIRE— 

doctrine  of  possession 53 

committee  to  make  partition 380 

NEW  JERSEY— 

act  of  1 797 ^^ 

failure  to  take  possession 53 

petition  for  partition '53 

NEW  YORK— 

estates  present  or  future 3° 

conflict  relative  to  former  statutes 34 

failure  to  take  possession 53 

Revised  Statutes  as  to  deeds  and  conveyances 86 

intention  as  to  reversioners 95 

partition  under  statutes lo? 


6l2  INDEX. 

Page 
NEW  YORK— Continued 

as  to  guardian ii° 

form  of  action  continued 1 32 

requirements  in  answer 169 

trial  of  issues ^°^ 

improvements ^93 

judgment  a  bar 247 

dower 3°! 

sale  of  property 3i5 

infant's  share 3' 9 

costs 342-349 

distribution 3^5 

equality 373 

NEW  YORK  CODE— 

See  Code  Civil  Procedure. 

NORTH  CAROLINA— 

doctrine  of  possession • 53 

partition  under  court  order 217 

NOTICE  OF  PENDENCY— 

See  Lis  Pendens.  ^ 

NOTICE  OF  SALE— 
See  Sale;  Judgment. 

OHIO— 

petition  to  courts  at  law 26 

failure  to  take  possession 53 

adverse  possession ^5 

petition  for  partition ^53 

OUSTER— 

mortgage  by  tenant  in  common  no  evidence  of 88 

PARCENERS— 

what  are 4 

PARTITION— 

what  is 5 

mode  in  chancery 5 

when  only  allowed ^ 

enlargement  of  right  by  statute 8 

cestui  que  trust  cannot  maintain 24 


INDEX.  613 

Page 

PARTITION— Continued 

of  personal  property 27 

matter  of  right  by  common  law 27 

who  may  claim 27 

by  assignee  under  general  assignment 28 

when  it  cannot  be  maintained 37 

committee  to  build  church  sheds 39 

salt  lands 4° 

land  under  water 4i 

legal  title  must  be  clear 44 

when  not  to  be  ordered  on  application  of  infant 45 

decree  may  become  color  of  title 79 

when  cannot  be  made 103 

when  action  for  will  lie 166 

old  suit  in  equity  merged  in  civil  action 168 

what  necessary  to  maintain  action I75 

matter  of  right  in  equity 189 

not  in  fragments 192 

nature  of  bill  in  equity S^o 

court  to  determine  whether  there  shall  be 383 

object  of  3^7 

courts  must  grant  relief 439 

See  Voluntary  Partition. 
PARTIES— 

general  principles 23 

in  Conecticut 23 

in  New  York  must  have  estate  in  possession 23 

remainderman  may  be  made  party 24 

wife  must  be  made  party 25 

court  will  not  make  decree  unless  all  are  parties 25 

all  persons  interested 42 

general  rule ^9 

remaindermen 9° 

persons  z'n  esse 92 

actual  or  constructive  possession 92 

owner  of  moiety 92 

future  contingent  interest 93 


6?4  INDEX. 

Page 
PARTIES— Continued 

children  having  future  devise 93 

lunatic  or  habitual  drunkard 94,  104 

infant  heir 94 

husband  dying  pending  an  action 94 

wife  of  tenant  in  common 95 

assignee  of  a  deficiency  judgment 96 

creditors  and  incumbrancers 96 

tenancy  by  the  courtesy  initiate 98 

half  blood  and  whole  blood 98 

a  cestui  que  trust 99 

leased  lands  for  term  of  years 100 

when  husband  not  joined  as  party loi 

rights  must  be  set  forth  in  petition 102 

tenant  in  common  of  inheritance 102 

widow  proper  party 102 

owning  land  in  separate  parcels 103 

all  interested  must  be  parties 103 

owners  of  several  parcels 103 

grantee  of  widow's  right  of  dower 104 

in  Mississippi. . . .    105 

wife  may  be  made  party 105 

non-joinder  of  defendants 105 

under  N.  Y.  Code  Ci^^  Pro 105 

contingent  remaindermen 107 

wives  as 108 

if  defendant  marry  pending  action 108 

creditors  having  liens 109 

publication  of  summons 109 

unknown  owners no 

bound  by  decree 1 36 

all  persons  interested  must  be 186 

cestui  que  trust 205 

feme  covert 205 

every  person  having  estate  in  property 309,  310 

See  People. 


INDEX.  615 

Page 
PENNSYLVANIA— 

failure  to  take  possession 53 

collateral  inheritance  tax 371 

PENDENCY,  Notice  of. 
See  Lis  Pendens. 

PEOPLE— 

may  be  tenants  in  common 409 

government  or  state 409 

original  owner 410 


escheat. 


410 


New  York  rule 41 1 

summons  served  on  attorney  general 412 


limitation  of  action. 


443 


PERSONAL   PROPERTY— 

partition  of 27,  492 

may  be  owned  by  tenants  in  common 488 

if  property  that  can  be  separated 489 

letting  of  farm  on  shares 489 

appropriation  by  one  tenant 490 

ownerships  in  vessels 491 

equity  has  jurisdiction 491 

common-law  rule 492 

conversion 493 

PETITION— 

at  common  law  in  Massachusetts  and  Maine 26 

may  be  addressed  to  common  pleas 26 

to  courts  at  law 26 

must  set  forth  rights  of  parties 0 102 

there  must  be  seizin  in  fact 104 

on  behalf  of  infant  to  partition 113 

for  guardian  must  be  verified 11^ 

See  Complaint. 
PLEADING— 

what  is 167 

same  rule  in  partition  as  in  other  cases 168 

when  sufficient 172 


6l6  INDEX. 

Page 
PLEADING— Continued 

insanity  in  Vermont I77 

See  Complaint  ;  Answer  ;  Petition. 

POSSESSION— 

in  New  York  State 24 

when  presumed , 24 

possession  of  one  possession  of  all 24 

must  be  actual  or  constructive  to  maintain  action. . .     25-103 

when  possession  of  co-tenant  may  become  adverse —     25-63 

presumed  to  follow  title 25 

parties  without  it  cannot  partition 38 

•what  is 49 

under  grants 5' 

what  necessary  to  complete  possession 52 

possession  of  infant 52 

civil  possession 53 

failure  to  take 55 

constructive  possession 54-55 

actual  or  apparent 5^ 

evidence  of  ownership 57 

stranger  cannot  intrude 5^ 

where  there  is  no  adverse  possession 58 

under  Mexican  law 59 

by  guardian 59 

improvements  by 59 

of  agent 60 

of  vendee 60 

naked  possession 61 

what  is  constructive  possession 62 

averments  of  answer  to 176 

PROCEEDS— 

distribution  next  after  confirmation  of  sale 358 

case  of  infants 359~363 

share  of  wife ' 361-365 

lapse  of  time 361 

rule  inequity 361 

deed  of  married  woman  to  husband 362 


INDEX.  617 

Page 
PROCEEDS— Continued 

inchoate  right  of  dower , 362 

remainders 362 

successive  disabilities 364 

different  interest 364 

share  of  lunatic 364,  365 

equitable  distribution 364,  365 

security  by  husband 365 

unknown  defendant 367 

discretion 368 

duty  of  clerk 369 

bonds  and  mortgages 369 

duty  of  county  treasurer 370 

when  paid  to  county  treasurer 370 

abatement 371 

collateral  inheritance  tax 371 

advancements 372 

PROOF— 

when  infancy  must  be  proved 123 

PURCHASER— 

entitled  to  benefits  of  purchase 73 

conditional  adverse 76 

at  execution  sale,  action  by 83 

takes  lands  under  decree 94 

title  of  purchaser loi 

has  right  to  good  title 106-267 

when  he  cannot  object  to  validity  of  sale 183-270 

to  be  protected 3S4 

perfect  title,  error 414.  4i5 

jurisdiction  of  court 415 

taxes 416 

when  court  will  not  discharge  purchaser 418 

errors 4 '  ^ 

deviation  from  decree 419 

modifications  of  decree 419 

title  should  be  readily  ascertained 422 

entitled  to  marketable  title 423 


6l8  INDEX. 

Page 
PURCHASER— Continued 

sale  must  be  where 4.24 

purchaser  must  give  security 425 

liable  for  loss 426 

RECEIVER— 

when  appointed 237 

before  and  after  final  judgment 237 

where  defendant  has  absconded 237 

rents  and  profits 237-242 

possession  not  to  be  disturbed 238 

when  one  party  in  possession 239 

when  one  co-tenant  not  in  exclusive  occupation 240 

appointment  usually  to  prevent  fraud 241 

insolvency  of  co-tenant 241 

in  case  of  waste 241 

discretion  of  court 241 

infants  tenants  in  common 242 

REFEREE— 

on  infant's  petition 113 

to  determine  issues 189 

fees  of 348.349 

determine  shares 380 

must  obey  decree  or  order 416 

REMAINDERMEN— 

who  are   32 

may  institute  proceedings  where 90 

may  have  constructive  possession 90 

contingent  as  parties 107 

partition  as  to  conveyances 211 

rights  in  distribution 362 

RENTS  AND  PROFITS— 

remedy  for 160 

rents  to  be  set  up  in  pleading. . .    175 

appointment  of  receiver 237-242 

widow  entitled  to  account  of 303 

action  for  rents 384 

See  Accounting. 


REVERSION— 

what  is 

disseizin  of  tenant. 


INDEX.  6 1 9 

Page 
32 


33 

tenant  when  liable  to  reversioner ->3 

reversioner  necessary  party 07 

REVIEW— 

court  retains  jurisdiction 429 

inadequacy  of  price 420 

for  collusive  arrangement 4-0 

bidding  opened  when 431 

application  to  set  aside  sale 432 

^'■^"d 433-441 

power  of  court 43, 

when  fairly  conducted 434 

laches 4,4 

remedy  by  motion 4-.C 

case  of  Marvin  v.  Marvin 43c 

mistake ^  -7 

4j7 

by  appellate  court 437^  438 

sale  on  day  of  election 440 

want  of  knowledge  of  time  of  sale 440 

failure  to  attend 440 

sale  must  be  fairly  made 442 

RHODE   ISLAND— 

failure  to  take  possession 53 

statute  of  descents c)8 

RIGHTS  OF  PERSONS— 

the  law  holds  sacred 4 

nation  cannot  disregard 4 

SALE— 

when  beneficial  to  all  parties 27 

complaint  should  demand  sale 313 

interlocutory  judgment 314 

purchaser's  title 315 

Kentucky  rule 316 

infant's  interests 317-319 

terms  of  credit 317 


620  INDEX. 

Page 
SALE — Continued 

mortgages  taken  thereon 3^^ 

payment  to  guardian 3^9 

rights  of  parties S^o 

sale  may  be  decreed  in  first  instance 320 

report  of  sale 3^1 

when  order  need  not  be  made 321 

when  the  sale  is  proper 3^2 

power  of  the  court 323 

when  entitled  to  partition 324 

when  a  matter  of  right 325 

when  prejudicial 325 

sale  without  commissioners 326 

referee  to  conduct  sale 320 

surplus  moneys 327 

taxes 3''8 

it  must  be  public 328 

notice 328 

agreement  to  prevent  competition 329 

employment  of  a  puflfer 33° 

officer  making  sale  must  account 33° 

amendment  of  judgment 33^ 

propriety  of  judgment 33' 

officer  conducting  sale  not  to  purchase 332 

guardian  of  infant  not  to  purchase 332 

it  must  be  conducted  fairly 333 

notices  must  be  posted 333 

publication 333 

rehearing 334 

SEIZIN— 

can  be  but  one 455 

at  law  an  d  by  deed 45° 

SEPARATION— 

Common  interest 3 

SERVITUDE— 

parties  charged  with 203 


INDEX.  621 

Page 
SETTING  ASIDE  SALE— 429 

See  Review. 

SOUTH  CAROLINA— 

failure  to  take  possession 53 

severance  of  interest 95 

proceeds  of  sale 366 

STATUTE  OF  LIMITATIONS— 
See  Limitation  oe  Actions. 

SURPLUS  MONEYS— 

when  one  entitled  to  not  aggrieved 327 

TAXES— 

payment  by  one  co-tenant 205 

court  may  order  paid 328 

collateral  inheritance  tax 371 

where  sale  is  subject  to 417 

limitation,  statute  of 44S 

TENANT— 

liability  to  reversioner 33 

TENANT  BY  COURTESY— 

as  party 98 

TENANTS  IN  COMMON— 

American  rule 9 

accountable  to  each  other 9 

liability  to  co-tenant 10 

for  waste 10 

in  North  Carolina,  permanent  injury 10 

can  do  no  wrong  against  each  other 11 

must  use  care  and  d  iscretion 11 

withholding  not  conversion 1 1 

exclusive  use  of  property  by  one 11 

one  can  convey  a  part  of  his  lands 12 

may  take  peaceable  possession  of  joint  property 12 

cannot  oust  co-tenant 12 

must  all  join  in  action  for  trespass 12 

trustees  of,  or  school  district  may  be 13 

private  association  may  be 14 


622  INDEX. 

TENANTS  IN   COMMON— Continued  ^^^ 

accounting  may  be  had 14 

liability  of,  on  accounting 14 

husband  and  wife  may  be  tenants  in  common 14 

views  of  Justice  Danforlh  thereon 15 

Earl            "         16 

adverse  possession  of 71 

peaceable  possession  of  one 87 

half  blood  inherit  with 98 

of  inheritance 102 

must  be  in  possession 103 

partition  between  a  matter  of  right 189 

TENANTS  BY  ENTIRETY— 

as  to  husband  and  wife 14-21 

in  Massachusetts  it  is  a  joint  tenancy 21 

interest  of  partners 22 

TENANTS  FOR  LIFE— 

cannot  maintain  partition 32 

may  have  partition 35 

TENNESSEE— 

possession  in 58 

TITLE— 

original  acquisition .  i 

right  of  discovery i 

French  Colonies  of  United  States i 

sovereignty  in  Territories 2 

individual  property  upheld 3 

one  having  legal  title 59 

without  deed  equitable  interest 59 

trespasser  may  assert  59 

suspicious 137 

TRIAL  OF  ISSUES— 

chapter  upon 1 79 

jury  trial I79 

reference  to  determine  issues 180 

discretionary  questions 181 

another  action  pending 182 


INDEX.  623 

TRIAL  OF  ISSUES— Continued  ^""^^ 

amendments  mate  pro  tunc 182 

errors  in  statement 183 

omission  to  file  necessary  papers 184 

court  may  correct  errors 184 

right  of  plaintiff  should  appear 185 

application  to  remove  trustee 185 

interested  persons  not  parties 185 

estoppel 185 

resulting  trust 186 

parol  evidence  to  establish  trust 187 

action  must  not  be  destitute  of  equity 187 

questions  of  title 188 

action  against  life  tenant 188 

proceedings  by  widow 1 88 

rule  as  to  outstanding  life  estate 189 

partition  a  matter  of  right 189 

jurisdiction 189-191 

power  of  court  not  discretionary 190 

rents  and  profits 190 

legal  title  in  defendant  a  defense 190 

rights  of  mortgagor 191 

vendor's  lien 191 

equities  should  be  adjusted 192 

partition  cannot  be  had  in  fragments 192 

statute  of  limitations,  when  not  a  bar 193 

gift  by  parent  to  child 193 

advancement 194 

defective  judgment 194 

judgment  as  evidence 194 

recompense  may  be  had  when 195 

partition  of  a  spring  or  aqueduct 195 

rule  as  to  alluvion 196 

court  not  restricted  in  equity 1^7 

death  of  plaintiff  before  entry  of  decree 198 

case  of  default 19S-200 

liens 201 


1^624  INDEX. 

Page 

TRUSTEES— 

with  power  to  sell 28 

application  to  remove 185 

necessary  party 205 

not  debarred  from  action,  when 248 

TRUSTS— 

jurisdiction  of  court  of  equity  over 146 

resulting,  not  within  statute  of  frauds 186 

established  by  parol  evidence 187 

nepessary  party 205 

See  Trustees. 

UNKNOWN  OWNERS— 

partition  against - 3°^ 

every  person  interested  must  be  made  party 309,  310 

judgment  where  part  owners  unknown 309 

court  must  have  jurisdiction 3^9 

rule  in  Mississippi 31° 

proceedings  against  and  final  judgment 31 1 

allegation  of  in  petition 311 

notice  to  be  given 3^2 

costs  against 342 

proceeds  belonging  to 3^7 

VACATING  ACTION— 

when  plaintiff  fails  to  proceed 182 

who  may  move 182 

VACATING  SALE 429 

See  Review. 

VERDICT— 

when  cannot  be  reserved 1 34 

feigned  issue ^ 34 

VERMONT— 

doctrine  of  possession 53 

*'         "  constructive  possession 55 

averments  of  insanity ^77 

VIRGINIA— 

failure  to  take  possession 53 

adverse  possession  in 9 


INDEX.  625 

Page 
VOLUNTARY  PARTITION— 

right  of  co-tenants 459 

former  methods , 460 

appointment  of  commissioners 462 

effect  of  statute  of  frauds 463 

improvements 463,  466,  476 

occupation  in  severalty 464 

sanction  of  court 464 

parol  does  not  destroy  co-tenancy 467 

enforcement  of  parol 468 

most  usual  manner 469 

wife  to  join  in  deed 470 

married  woman  as  tenant  in  common 471 

husband  and  wife  as  co-tenants 472 

in  case  of  infancy 473 

fraud  or  collusion ...  473 

tenancy  in  lands  divided  by  road 474 

parol  followed  by  possession 475 

deeds  by  co-tenants 475 

buildings 476 

rule  m  Pennsylvania  and  Maine. 477 

effect  on  interest  of  married  womar. 477 

when  binding 47S 

WHAT  IS  NOT  ADVERSE  POSSESSION . . .  .v 80 

See  Adverse  Possession. 

WRIT— 

See  Complaint  ;  Petition. 

WHO  MAY  CLAIM  PARTITION— 

tenants  in  common  and  joint  tenants 27 

general  doctrine 27 

lands  leased 28 

by  assignee  under  general  assignment 28 

trustee 28 

administrator 29 

heir  of  deceased  intestate 29-31 

under  New  York  statute 30 

wife  having  mchoate  right  of  dower 31 


626  INDEX. 

Page 
WHO  MAY  CLAIM  PARTITION— Continued 

committee  of  lunatic,  &c 31 

under  written  contract 31 

a  purchaser  of  the  interest  of  devisee 31 

grantee  of  widow's  right  of  dower 31 

partner  of  partnership  lands 31 

tenant  for  life 32 

tenants  for  life ...  35 

WHEN  PARTITION  CANNOT  BE  MAINTAINED— 

not  by  one  having  future  contingent  interest 37 

nor  by  dowress 37 

nor  lessee,  when 38 

where  parties  own  separate  parcels 38 

land  held  by  husband  and  wife 38 

when  there  is  an  infant,  and  will  forbids 39 

committee  to  build 39 

land  under  water,  water  rights .  .  41 

when  all  interested  not  made  parties 42 

a  receiver  in  supplementary  proceedings 42 

real  estate  held  by  judgment  debtor 42 

must  be  actual  or  constructive  possession 43 

adverse  possession  a  bar 43 

when  grantee  cannot 44 

legal  title  must  be  clear 44 

when  debts  of  ancestor  are  unpaid • 44 

when  title  subject  to  right  of  third  party 45 

not  on  application  of  an  infant 45 

judgment  creditors  cannot  be  compelled  to  join 46 

persons  having  vested  interest 46 

persons  of  unsound  mind 46 

receiver  in  supplementary  proceedings 46 

legatee  under  a  will 47 

See  Adverse  Possession. 

WHO  MAY  ACQUIRE  ADVERSE  POSSESSION 82 

See  Adverse  Possession. 

WIDOW— 

proper  party 102 


INDEX.  627 

WIDOW— Continued  ^^^ 

grantee  of  widow's  right  of  dower 104 

takes  one-third  in  fee  in  Indiana 164 

averment  in  complaint  as  to 165 

WIFE— 

must  be  party je 

joined  with  her  husband  as  plaintifl 31 

purchaser  of  premises  subject  to  dower  of 94 

of  tenant  in  common  as  party oc 

when  husband  not  joined  as  party loi 

may  be  made  defendant 1 05-108 

share  of  proceeds  of  sale 361 

deed  to  husband 3^2 

share  as  co-tenant 35e 


INDEX  TO  FORMS. 


Page 
ACKNOWLEDGMENT— 

guardian's  bond 511 

to  deed 588 

AFFIDAVIT— 

of  infant  on  application  to  surrogate  for  leave  to  bring 

partition 509 

for  reference 529 

on  application  for  money  paid  into  court 567 

of  service  of  notice  on  incumbrancer 569 

on  motion  to  compel  purchaser  to  complete  purchase. . . .  575 

for  substitution 577 

ANSWER— 

of  infant  or  lunatic 5^7 

denying  complaint  and  alleging  ownership 527 

pendency  of  action  for  dissolution  of  partnership 528 

concurring  in  plaintiff's  prayer 528 

APPLICATION— 

for  money  paid  into  court 5^7 

notice  of  568 

BOND— 

of  guardian  ad  litem 510 

COMMISSIONERS— 

oath  of 547 

report  making  partition. 54^ 

report  favoring  sale 55° 

final  judgment  upon 55^ 

[628] 


INDEX    TO    FORMS.  629 

COMPLAINT—  ^^^^ 

devise,  trust  and  remainders 512 

among  heirs  at  law rj^ 

general  form r  j  g 

another  general  form 520 

another  general  form 521 

the  same,  sources  of  title 522 

for  admeasurement  of  dower 523 

to  compel  determination  of  claims 524 

another  general  form 525 

DEEDS 585-587 

DOWER— 

consent  to  receive  gross  sum 570 

release  of  inchoate  right • 570 

FINAL  JUDGMENT— 

See  Judgment. 
GUARDIAN— 

bond  of  rjQ 

INFANT— 

affidavit  for  leave  to  partition 509 

order  upon r,Q 

bond  of  guardian c jq 

petition  for  leave  to  partition 57p 

INTERLOCUTORY  JUDGMENT— 

See  Judgment. 
JUDGMENT— 

final,  for  actual  partition 542 

where  compensation  is  to  be  made 543 

interlocutory c^^ 

interlocutory  partial  partition 546 

final,  on  report  of  commissioners 551 

final,  of  sale ee-i 

order  modifying 557 

confirmation  of  referee's  report 571 

JUSTIFICATION— 

of  sureties  on  bond en 

LIS  PENDENS 584 


630  INDEX    TO    FORMS. 

Page 
MOTION— 

for  reference.   53^ 

NOTICE— 

to  be  annexed  to  summons  in  case  of  publication 5^8 

of  object  of  action 5^9 

motion  for  reference 53° 

to  creditors,  by  referee 55^ 

of  sale 559 

of  application  of  money  paid  into  court 5^8 

to  compel  purchaser  to  complete  purchase 574 

motion  for  authority 580 

of  lis  pendens •  •  •   5^4 

to  be  affixed  to  summons 5^4 

OATH— 

of  referee 534 

ORDER— 

allowing  infant  to  bring  partition  suit 5"° 

of  reference 53'f 

preliminary  reference 53^ 

modifying  judgment 557 

confirming  sale 574 

compelling  purchaser  to  complete  purchase 576 

discharging  purchaser 576 

of  substitution 57^ 

granting  leave  to  partition 580 

to  show  cause  why  leave  to  partition  should  not  be  granted  581 

on  return  of  same 5^2 

on  referee's  report 5^3 

PETITION— 

of  general  guardian  or  committee  for  leave  to  partition. .   579 

PLEADING— 

See  Complaint  and  Answer. 

REFEREE— 

oath  of 534 

report  as  to  title 534 

that  partition  can  be  made 53^ 

that  sale  is  necessary 53^ 


INDEX    TO    FORMS.  63 1 

Page 
REFEREE— Continued 

report  of  sale ...  560-562 

where  purchase  not  complete 562 

final  report  after  sale 564 

report  of  sale  under  New"  York  Code 565 

report  on  application  for  leave  to  partition 582 

deed 585-587 

REFERENCE— 

motion  for 530 

order  of 531 

preliminary 532 

REPORTS— 

referee's  as  to  title     534 

"       partition 536 

sale  necessary 538 

report  of  sale 560-562 

where  purchase  not  complete 562 

final  report  of  sale 564 

sale  under  New  York  Code 565 

SALE— 

notice  of 559 

SUBSTITUTION— 

affidavit 577 

order 578 


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